United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P SCHOFIELD (Representative) EEF Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MR P O'BRIEN (Representative)


 


MR JUSTICE BELL: This is an employer's appeal against part of the calculation of an award of compensation for constructive and unfair dismissal made by an Industrial Tribunal held at Birmingham on 9th May 1997.

The essential facts as found by the Industrial Tribunal, all which are common ground, are as follows. The employee, Mr Sedgley, left his employment with Dawes Cycles Ltd, the appellant, in February or March 1996. He was then 59 years of age. By the time that he actually left Dawes he had found employment with another cycle manufacturer, Pegasus, at a slightly lower salary, £196.20 as opposed to £198.84 which he had been receiving from Dawes, a difference of £2.64 per week. He did not receive the £25.73 per week commission or the £17.45 pension contribution which the Industrial Tribunal judged that he would have received had he continued to work at Dawes. He was in any event suffering a continuing weekly loss of £45.82 even taking account of his Pegasus salary of £196.20.

Unhappily for Mr Sedgley his new employer went into receivership on 14th April 1997, and he was unable to find further work by the time of the Industrial Tribunal hearing on 9th May 1997.

Mr Sedgley was then 60 years of age. Since he was unemployed he was earning £198.64 salary, £25.73 commission and £17.45 pension contributions, that is £241.82 a week, less than he would have been earning but for his unfair dismissal by Dawes. There was no suggestion nor could there be that the loss of his job with Pegasus was in any way Mr Sedgley's fault.

Among other matters the Industrial Tribunal found that since Mr Sedgley had left Dawes it had tightened up its commission payments. It had suffered significant trading losses for each of the last five years. It faced a difficult decision by the end of 1997 over the future of its operation in the area where Mr Sedgley worked. The Industrial Tribunal found that it would be unreasonable to consider that Mr Sedgley could have assumed that he would necessarily have been employed by Dawes until his 65th birthday, that is the normal retirement age, or that he had no chance at all of obtaining further employment after the Industrial Tribunal hearing. The Industrial Tribunal therefore adopted what it saw as a modest future loss period of 36 weeks from the date of the hearing in May 1997.

The Industrial Tribunal awarded Mr Sedgley 60 weeks past losses of £2.64 per week, plus three weeks at £198.84 per week, 63 weeks at £25.73 pass loss of commission and 63 weeks at £17.45 per week past loss of pension contributions. That compensated Mr Sedgley to the day before the hearing. Most relevant to this appeal it awarded 36 weeks future losses at £241.82 per week including salary of £198.84 into the future. Adjustments for loss of statutory rights, imposition of the statutory maximum and the addition of a basic award led to final figure awarded of £13,505.

The 36 weeks loss of future salary at £198.84, the full figure which Mr Sedgley would have been earning at Dawes, rather than just the £2.64 difference between the Dawes salary and the salary that he had been earning at Pegasus, meant that the Industrial Tribunal had attributed all Mr Sedgley's loss of earnings and benefits after loss of his new job to his original unfair dismissal by Dawes.

The point taken on this appeal, that £196.20 of the continuing loss of salary was properly attributable to the loss of Mr Sedgley's new job at Pegasus, rather than to his unfair dismissal by Dawes, was not taken by Dawes at the Industrial Tribunal hearing, but it was taken by Dawes in a letter dated 25th June 1997 requesting a review of the Industrial Tribunal's decision.

In refusing that review on 15th July 1997, the Chairman alone said among other matters:

"... the loss sustained by the applicant during the whole of the 36 week period was a direct consequence of his unfair dismissal in February 1996, mitigated by the income he had been able to earn since his unfair dismissal;"

He said that Mr Sedgley bore no blame for loss of his new job, and that the connection between his current employment and his original unfair dismissal was not to be regarded as too remote. But no words to that effect appear in the original decision itself and the appellant, Dawes, challenges that conclusion.

Mr Schofield for Dawes in his skeleton argument and his submissions today has contended that the only continuing losses attributable to the unfair dismissal, after the loss of Mr Sedgley's new job, was the £2.64 of salary, plus the loss of commission and the loss of pension contributions, which he had always continued to lose. So far as the loss of £196.20 of salary was concerned, that, contends Mr Schofield, was caused by and properly attributable to the failure of his new employer and not his original unfair dismissal.

Mr O'Brien for Mr Sedgley contends that the Industrial Tribunal must have concluded that the chain of causation between Mr Sedgley's unfair dismissal by Dawes and his complete loss continuing after 4th April 1997 had not been broken by his employment and eventual redundancy with Pegasus. He contends that that conclusion was correct, or at least one which a reasonable tribunal properly directed could come to.

Consideration of the relevant principles begins with s.123(1) of the Employment Rights Act 1996, which so far as it is material provides:

"... the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

Subsection (4) of s.123 reads:

"In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland."

Mr Schofield stresses the last words in s.123(1):

"in so far as that loss is attributable to action taken by the employer."

He says that those words indicate that an Industrial Tribunal must have regard to matters of causation in assessing an applicant's loss, and that it is not sufficient that the unfair dismissal is a causa sine que non of the loss. The action of the unfair employer must be the proximate cause of the loss, otherwise there would be no need for the subsection to go beyond the requirement that the loss must be "sustained by the complainant in consequence of the dismissal".

Mr Schofield relied upon a number of cases. Taken in chronological order the first is Courtaulds Northern Spinning Ltd v Moosa [1984] IRLR 43. It is a decision of the Employment Appeal Tribunal presided over by Browne-Wilkinson J (as he then was), the then President of the Employment Appeal Tribunal. The statutory equivalent of s.123(1) of the 1996 Act was then s.74(1) of the Employment Protection (Consolidation) Act 1978. The facts of that case were that on 8th June 1979 Mr Moosa was dismissed by the appellant company. The tribunal held that he had been unfairly dismissed. For a number of reasons, it was not until 14th January 1983 that the Industrial Tribunal gave their final decision on the sum to be awarded to Mr Moosa by way of unfair dismissal. In the meantime from 1st October 1979 until 21st March 1981 Mr Moosa had been employed by another firm, Fashion Flow. That period of employment, it follows, was for nearly 18 months from a time about four months to a time just over 21 months after his unfair dismissal by the appellant company. The Industrial Tribunal was hearing the matter about 3½ years after the dismissal. In assessing Mr Moosa's compensatory award the tribunal firstly awarded loss of wages from 8th June 1979, the date of dismissal, to 14th January 1983, the date of the compensation decision. From that figure they deducted the earnings Mr Moosa had received from Fashion Flow. They then awarded a further 26 weeks future loss of wages. In the result, compensation for loss of Mr Moosa's job with the appellants was awarded for a total of 214 weeks, notwithstanding that during that period he had held a job with Fashion Flow for nearly 18 months. The company appealed against the decision, and the Employment Appeal Tribunal allowed the appeal on the question of the time period covered by the compensatory award and remitted the case to the same Industrial Tribunal. The report before us says that leave was given to appeal to the Court of Appeal, but our attention has not been drawn to the result of any such appeal, if indeed it was pursued.

Dealing with the question of the duration of compensation, Browne-Wilkinson said at page 47, paragraph 25 and thereafter:

"The compensation awarded by the Industrial Tribunal makes Courtaulds liable to compensate Mr Moosa for not having a job during the period after he lost his new job with Fashion Flow. Mr Brindle submits that this cannot be right since, once Mr Moosa obtained permanent employment with Fashion Flow, any loss thereafter is not caused by his dismissal by Courtaulds but by his dismissal by Fashion Flow.

In the ordinary case where there has been no inordinate delay in assessing compensation such as has occurred in this case, such questions cannot arise. In practice, Industrial Tribunals assess the loss down to the date of assessment by treating the employer as liable for loss of wages down to that date but setting against that amount any earnings which the employee has received from an alternative employment. If at the date of assessment the employee is in apparently permanent employment on comparable terms, the Industrial Tribunal does not award any compensation for future loss of earnings. If the employee is not then in such employment, the Industrial Tribunal forms a view as to how long it will be before the employee gets such employment and compensates in respect of that period. In practice it is assumed as to the future that the original employer's liability ceases once equivalent permanent employment is obtained.

As to the past loss, the basis of assessment is not in our judgment strictly logical. If before the date of assessment the employee has obtained an equivalent permanent employment, in principle the original employer's liability to compensate has come to an end. In wrongful dismissal cases at common law the loss caused by the breach of the contract of employment is treated as coming to an end when alternative employment is obtained: see McGregor on Damages, 14th edn., paragraph 940. But in practice in the ordinary case it makes little financial difference whether the loss is treated as coming to an end when new permanent employment is obtained or is treated as continuing down to the date of assessment, the employee being required to bring into account his earnings from the new employment.

On the other hand when a long period has elapsed between dismissal and the date of assessment (as in the present case) the two approaches can produce dramatically different results. In our judgment, on the facts of this case it is impossible to say as s.74(1) of the Act requires, that Mr Moosa's loss of wages after his dismissal by Fashion Flow 'is attributable to action taken by' Courtaulds. It is attributable to the action taken by Fashion Flow in dismissing Mr Moosa: that latter dismissal is the cause of the loss. Therefore, apart from authority we would hold that Courtaulds were not liable for any loss of wages after Mr Moosa obtained his employment with Fashion Flow."

The judgment then referred to the case of Ging v Ellward Lancs Ltd [1978] 13 ITR 265 and continued:

"This Appeal Tribunal rejected the appeal on the grounds that in relation to past loss the correct procedure was to compute the loss of wages from the old employment down to the date of assessment (July 1977) and then set against that all earnings received by Mr Ging in that period."

The judgment in the Courtauld case conluded:

"In our judgment, therefore, loss of wages should only have been awarded in the present case down to 1.10.79 when Mr Moosa obtained his new employment with Fashion Flow. On the facts known to the Industrial Tribunal at the date of assessment, Mr Moosa's employment with Fashion Flow had been permanent in the sense that he had been employed for more than 52 weeks, ie long enough to secure limited security in his employment with Fashion Flow afforded by the right not to be unfairly dismissed. What would have happened if Mr Moosa had been unfairly dismissed by Fashion Flow? Would he have had the right to compensation both from Courtaulds and Fashion Flow? As we have said, in our judgment the loss after his dismissal by Fashion Flow is attributable not to any action by Courtaulds but to the actions of Fashion Flow.

Accordingly, the assessment of compensation made by the Industrial Tribunal must be set aside as being erroneous in law."

In fact in Mr Sedgley's case his new job had not lasted long enough to provide him with a remedy for unfair dismissal, the qualification period having been increased to two years since the Courtauld case, but Mr Schofield is entitled to pray in aid the earlier part of the judgment which we quoted. The lesson which we take from that earlier part is that the test is ultimately whether in the judgment of the tribunal on the facts of the particular case the loss of earnings is attributable to action taken by the original employer, Dawes in the present case, or to action taken by the new employer in dismissing the applicant from his new job. Clearly the length of the new job is an important factor in answering that question.

We were referred to Dundee Plant Co Ltd v Riddler (Unreported. Appeal number: EAT/377/88), but that case is really no more than an example of the chain of causation not being broken by a short period of employment between unfair dismissal and the Industrial Tribunal hearing, especially where as in that case the appellant/employer's representative had not investigated in cross-examination the circumstances of the employee voluntarily leaving his subsequent job, or the fact that he had not yet taken up another job which would be available.

In Lytlarch Ltd v Reid [1991] ICR 216 the Employment Appeal Tribunal said that particular regard had to be paid to the words "just and equitable" in the statutory provision, then s.74(1), and to the degree of discretion allowed to an Industrial Tribunal in assessing the compensatory award.

The next case in time referred to was Mabey Plant Hire Ltd v Richens a decision of the Court of Appeal on 6th May 1993. That case is not formally reported but Mr Schofield has today provided us with a transcript of the leading judgment. The relevant facts of the case were that Mr Richens was dismissed by Mabey Plant Hire on 23rd August 1989 and lodged a claim of unfair dismissal. In the meantime, he obtained employment as plant hire and sales representative with another company, MG. On 21st February 1990 he was dismissed from that employment. Subsequently Mr Richens won his claim of unfair dismissal against Mabey. On the matter of his employment and dismissal by MG, the tribunal stated that Mr Richens employment with MG was planned to be permanent. In a later paragraph it stated that the job was not "permanent employment for a sufficiently long period as would relieve Mabey of responsibility for the consequences of the applicant's subsequent dismissal". The tribunal found that Mr Richens' dismissal from MG was on account of a clash of personalities with his depot manager and a failure to comply with company regulations. Regarding the amount of the compensatory award, the tribunal held that Mr Richens was entitled to full loss of earnings for his period of unemployment after leaving Mabey from 23rd August 1989 to 16th October 1989. During the currency of his second employment from 16th October 1989 to 21st February 1990, he was entitled to a sum representing the difference between the rates of remuneration in the two jobs. Finally, in respect of the period after his dismissal from the second job on 21st February, the tribunal awarded Mr Richens the full monthly rate payable by Mabey, but reduced it by 50 per cent because of the applicant's failure to mitigate his loss. The employers appealed against the award of compensation for the period after 21st February.

In his judgment, with which the two other members of the Court of Appeal agreed, Sir Thomas Bingham MR said, at pages 15D to 16A of the transcript:

"I for my part, agree with EAT in finding the reasoning of the industrial tribunal far from clear and in some respects somewhat self-contradictory. But it is, I think, possible to identify with confidence two errors in the industrial tribunal's approach. First, it appears to me plain that the tribunal concluded that Mr Richens' employment with Marwood could have been permanent and that that employment came to an end for reasons unrelated to any action taken by the employers. Whether the employment came to an end because of a clash of personalities, or because of Mr Richens' non-compliance with Marwood's regulations, or both, it seems to me plain that the alternative employment came to an end in circumstances which broke the chain of causation between the dismissal by the employers, with the result of any loss ensuing after 21 February 1990 is not to be laid at the door of the employers, save on the basis of the difference between the salary payable by the employers and that which would have continued to be paid by Marwood had Mr Richens not lost that employment."

In his skeleton argument Mr Schofield contended that that case was binding authority that where an employee obtains new employment which could have been permanent and that employment comes to an end for reasons unrelated to any action taken by the employer, the chain of causation is broken.

In our view, that is too far reaching and too restrictive a contention. It would mean that any employee obtaining any job which could have been permanent has the chain of causation broken however short and unsuitable the new job turns out to be. In our view Mr Schofield's contention reads too much into the decision in Mabey and in fairness to Mr Schofield he moderated his contention in argument today to a submission that where an employee obtains new employment which could have been permanent and that employment comes to an end for reasons unrelated to any action taken by the employer, it is highly likely that the chain of causation will be broken. In our judgment, the lesson from Mabey is that the Court of Appeal there asked itself whether the alternative employment came to an end in circumstances which broke the chain of causation between the dismissal by the original employers on the particular facts of the case. We see the need to ask that question as the ratio of that case.

In Simrad Ltd v Scott [1997] IRLR 147, the applicant/employee after unfair dismissal on the grounds of redundancy from her job as an electronics technician took a more lowly paid job with no career prospects. Eventually she decided to retrain as a nurse, a change of career which the Industrial Tribunal found to be reasonable. The relevant question before the Employment Appeal Tribunal was whether the reduction of earnings consequent upon her decision to embark upon a new career was directly attributable to the employer's action in dismissing her. The facts are far removed from this case, but the value of the decision lies in the analysis of the requirements of s.74(1) which still applied at that time. Giving the Employment Appeal Tribunal's judgment, Lord Johnston, accepting the submissions of Counsel for the employer, said at page 149, paragraph 6:

"The process is a three-stage one requiring, initially, factual quantification of losses claimed; secondly, but equally importantly, the extent to which any or all of those losses are attributable to the dismissal or action taken by the employer, which is usually the same thing, the word 'attributable' implying that there has to be a direct and natural link between the losses claimed and the conduct of the employer in dismissing on the basis that the dismissal is the causa causans of the particular loss and not that it simply arises by reason of causa since qua non, ie but for the dismissal the loss would not have arisen. If that is the only connection, the loss is too remote. The third part of the assessment in terms of the reference to the phrase 'just and equitable' requires a tribunal to look at the conclusions they draw from the first two questions and determine whether, in all the circumstances, it remains reasonable to make the relevant award. It must again be emphasised, however, that what is to be considered under the third test already has to have passed the second. Finally, it has to be observed that while the facts relating to a question of mitigation will frequently bear upon the question of causative link, mitigation is essentially an equitable plea to be judged in the context of reasonableness at common law and thus on not too fine a balance. Accordingly, the issue of mitigation will feature in the application of the third test rather than the second, ..."

In Whelan v Richardson [1998] IRLR 114, where the applicant had obtained a better paid job before the Industrial Tribunal hearing, the Employment Appeal Tribunal was concerned with the assessment of past losses. The Employment Appeal Tribunal considered the Courtaulds and Ging cases in particular. At the end of the judgment of the Employment Appeal Tribunal, Judge Peter Clark said by way of general observation at page 117, paragraph 34:

"We begin with some general, possibly trite, observations. Each case must depend upon its own facts. The parties will select whichever authority best suits their cause on the facts of the particular case. Industrial Tribunals are charged with doing justice between the parties. Compensation is to be assessed in such a way as to compensate the employee, not penalise the employer, in relation to the compensatory, as opposed to an additional or special award. Neither party should gain a 'windfall'. Compensation must be that which is just and equitable. Parliament has thereby granted a discretion to industrial tribunals which ought not to be placed in a straitjacket by too rigid statements of principle handed down by this tribunal in appeal decisions. However, that discretion must be exercised in accordance with clear principles, to some extent imported into this field from the Common Law by the words of the statute."

Judge Peter Clark reduced the Appeal Tribunal's conclusions to a series of propositions which the Appeal Tribunal thought might be helpful. Among those propositions were the following at paragraphs 45 and 46:

"(4) Where the applicant takes alternative employment on the basis that it will be for a limited duration, he will not then be precluded from claiming a loss down to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment.

(5) As soon as the applicant obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss attributable to the action taken by the respondent employer ceases. It cannot be revived if he then loses that employment either through his own action or that of his new employer. Neither can the respondent employer rely on the employee's increased earnings to reduce the loss sustained prior to his taking the new employment. The chain of causation has been broken."

Our only reservation about that would be if proposition (5) were to be taken to be a rule to be applied in all cases. But in our view, that is not a true analysis of the judgment in Whelan. The judgment had earlier made it clear that although the distinction between temporary and permanent employment might be material, "the old concept of 'permanent' employment, the 'job for life' is rapidly fading in the current labour market", and the judgment while offering the series of propositions with a view to being helpful, had expressly done so on the basis that the Appeal Tribunal was "not seeking to fetter the exercise of discretion by industrial tribunals on the facts of any individual case".

So much for the authorities to which we were referred.

Finally, before turning to our conclusions, we note Mr Schofield's argument that the award for loss of statutory rights is meant to compensate for the risk of being thrown on the labour market with the risks involved. He put it in this way in his skeleton argument:

"The award of a sum for loss of statutory rights which industrial tribunals make as part of the compensatory award recognises that an unfairly dismissed employee will be exposed to the risk of losing his or her new job without remedy in the first two years of resuming employment. Beyond this, the original employer is not to be made responsible for any subsequent loss of employment."

We cannot accept that submission. The limited amount of the conventional award for loss of statutory rights, £200, cannot be intended to compensate for all the risks of future loss of earnings involved in being unfairly dismissed again in the future.

Taking all the arguments which we have heard into account, the principles which seem to us to apply to the question of whether Mr Sedgley's compensation should cover his complete loss of earnings after 14th April 1997 are as follows:

(1) In this statutory jurisdiction the Industrial Tribunal must apply the express wording of s.123(1) of the Act. The purpose and effect of the words "in so far as that loss is attributable to action taken by the employer" is to make it clear that the earlier words "in consequence of the dismissal" mean more than merely "following after the dismissal". What is required that the loss in question, in this case the continuing loss of earnings after 14th April 1997, should fairly and sensibly be judged to have been caused by the unfair dismissal rather than by some later event, in this case the loss of Mr Sedgley's new job. That is the same requirement as appears in other jurisdictions; for instance, where courts have to asses the loss of earnings arising from a plaintiff's personal injuries caused by a defendants negligence.

(2) Each case, including this one, depends on its own facts, but there are a number of factors which tend to recurr from case to case, and which may be important in deciding whether a new job has broken the chain of causation from the original unfair dismissal to the loss of earnings which is present at the time of the Industrial Tribunal hearing. For instance:

(a) It is of potential importance to find whether the new job was a temporary measure taken in an attempt to mitigate the applicant's loss of earnings arising from his unfair dismissal or whether it was seen as a permanent replacement.

(b) Whether a new job is seen as "temporary" or "permanent" it is potentially important to see how long it has lasted. A "temporary" job may in fact last for a considerable period. There may, for example, be a series of matter of course renewals of short term contracts, or the temporary employee may become an indispensable part of the employer's undertaking. On the other hand, "permanent" replacement jobs can turn to dust very quickly, especially perhaps in a situation where an employee who is no longer young is unfairly dismissed and thrown from apparently steady employment on to a volatile labour market, and where it would not be right to find that the chain of causation between his original unfair dismissal and his now re-continuing loss of earnings has been cut by the advent of a job which was expected to be permanent but which turned out not to be.

(c) There is no rule of thumb or presumption that if a new job has come to an end by the time of the Industrial Tribunal hearing, then the chain of causation has not been broken; or that if a new job is continuing at the time of the hearing, the chain of causation has been broken, although it may well be easier to find a break in causation in the latter situation than in the former.

(d) Remuneration for the new job may be relevant. A job taken at a fraction of the applicant's pre-unfair dismissal wage may be more easily seen as a mere attempt at mitigation. A job at virtually the same wage or even more, may more readily be seen as a replacement job, cutting the chain of causation.

(e) It is necessary to see whether any particular circumstances in which the appellant has lost his new job have broken the chain of causation; by way of example only, his own misconduct, or a disabling injury however caused, resulting in loss of apparently secure employment

(f) Qualification or lack of qualification for remedies for unfair dismissal from the new job is a matter to consider, although this may be largely of academic interest under the existing law, since a new job lasting anything like two years may inevitably have to be judged to have cut the chain of causation.

(3) The factors which may be relevant are innumerable, and the varying mixes of type and degree so infinite that one can only judge each case as it comes, reaching a conclusion which is just and equitable in all the circumstances as s.123(1) enjoins.

Did the Industrial Tribunal in this case apply s.123(1) and the correct principles to the issue of whether Mr Sedgley's job with Pegasus and the loss of that job broke the chain of causation between his unfair dismissal by Dawes and his total loss of earnings after 14th April 1997?

We can see no real indication in the Industrial Tribunal's decision entered in the Register on 11th June 1997, that the Industrial Tribunal considered the question of whether the chain of causation had been broken. We do not accept Mr O'Brien's submission that we should infer that it did from the fact of the award of full loss of earnings after 14th April 1997. That may be explained by the fact that the employer's representative did not raise the question of a break in causation.

When Dawes received the Industrial Tribunal's decision it raised the point and asked for a review. In his decision rejection an application for a review, on 15th July 1997, the Chairman said, as we have already indicated, that the loss sustained by Mr Sedgley during the whole of the 36 week period of assessed future loss, was a direct consequence of his unfair dismissal in February 1996, mitigated by the income which he had been able to earn with Pegasus. But the Chairman went on to describe the period of new employment with Pegasus as " relatively short". We are not content to read what was said in the decision rejecting the application for a review as part of the extended reasons for the original decision. We do not consider that we can safely conclude that the Industrial Tribunal considered the relevant principles in relation to any breach of the chain of causation, if indeed it considered the possible breach of the chain of causation at all.

We certainly do not think that we can form our own final judgment on whether there was or was not a break in the chain of causation, as Mr Schofield and Mr O'Brien, each arguing for the conclusion in favour of his own client, have submitted. So the appeal must be allowed to the extent that the matter must be remitted for a reasoned decision on the question of whether the complete loss of earnings after 14th April 1997 was in consequence of the unfair dismissal in so far as that is attributable to action taken by the employer, in accordance with the guidance which we have set out in this judgment.

Mr Schofield has argued that if that is the course to be taken, the case should be remitted to differently constituted tribunal. Notwithstanding his fear that the tribunal which originally heard the matter has already reached a conclusion from which it cannot withdraw, and his fear that continuing unemployment of Mr Sedgley may make his client's position worse, although this last fear must be limited by the statutory ceiling on awards, we consider that the matter should be remitted to the same tribunal. If the matter is remitted to a differently constituted tribunal, there is no limit, in our view, to the amount of matters which it might wish to re-open. We must have confidence in the ability of the existing Industrial Tribunal to reach a fair and honestly reasoned decision. So the matter will be remitted to the Industrial Tribunal at Birmingham, constituted of the same members, to reconsider the calculation of loss from 14th April 1997 in the light of the guidance which we have given.

It will be entirely for the Industrial Tribunal, when considering the matter upon remission, to decide what evidence should be admitted on its reconsideration of the matter. It would be helpful if the representatives of both parties could give the Industrial Tribunal some immediate indication of any evidence they would wish to call. Obviously the Industrial Tribunal will hear such submissions from the representatives of either party as they wish to make on the issue which is put back before the Industrial Tribunal.