At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY
MR J R CROSBY
MR W MORRIS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellants | MR PORTER (of Counsel) Instructed By: Mr R Beverley Messrs Freeth Cartwright Hunt Dickins Solicitors Willoughby House 20 Low Pavement Nottingham NG1 7EA |
MR JUSTICE LINDSAY (PRESIDENT): We have before us, by way of a Preliminary Hearing, the appeal of Dr Sudaram Rai in the matter Kingswood against Rai. Dr B S Rai trades as Rainworth Manor Nursing Home.
"1. The Respondents dismissed the Applicant for a reason related to union activities within the meaning of Section 152 Trade Union and Labour Relations (Consolidation) Act 1992.
2. The dismissal is therefore to be regarded as unfair.
3. The Tribunal will consider what remedy should be granted to the Applicant on 17 May 1999."
"33. This circulation had the potential of having an adverse effect on the Applicant's career. It was written before any opportunity to appeal against the decision being given and without hearing the Applicant's version of events. We considered the motivation of Dr Rai in taking this unnecessary step. Dr Rai inadequately explained this circulation as being for the protection of the Home and other Homes who might employ the Applicant."
A little later:
"We were forced to the conclusion that circulating the letter as Dr Rai did was motivated by vindictiveness."
A little later, on our page 22, at paragraph 45 it says:
"45. The Respondents had attempted to bolster their allegations and to slur the Applicant's character with the registration authorities and others. On the balance of probabilities it was apparent that the dismissal was for reason of the Applicant's trade union activities."
In paragraph 49 they said:
"49. We have come to the conclusion that the Respondents dismissed the Applicant for the reason of his trade union activities. We found the reason given by the Respondents as to why they had dismissed the Applicant to be unconvincing."
In paragraph 60 it was said:
"60. The Applicant impressed us as an honest individual who knew his job and the procedures required within a nursing home. When giving his evidence he did not hesitate and was consistent in the accounts which he gave."
In paragraph 61 they dealt with, by way of summary, one of the events, perhaps the chief of them, that was said to have led to Mr Kingswood's dismissal:
"61. We are of the view that the resident disappearing from the nursing home was a convenient event which the Respondents seized upon to seek to justify the Applicant's dismissal. The Applicant was raising serious concerns as referred to above and encouraging union membership by staff. In the view of the Tribunal, he had become a nuisance which the Respondents were not prepared to tolerate."
In paragraph 50 it was held:
"50. There had been other occasions when employees had been responsible for residents leaving the nursing home but they had not been disciplined for this. The residents leaving the nursing home was always a possibility when there was no policy or ability to lock the front door and operate the alarm."
"The unanimous decision of the Tribunal is that the respondent do pay to the applicant the sum of £39,871.80."
Paragraphs 1 and 2 of the Extended Reasons say this:
"1. The unanimous decision of the Employment Tribunal sent to the parties on 4 May 1999 was that the respondents had dismissed the applicant for a reason related to his trade union activities. The tribunal had on 10 December 1998 made an order under Section 163 Trade Union and Labour Relations (Consolidation) Act 1992 ('The 1992 Act') namely that the applicant's contract of employment should continue from that day. By virtue of Section 164 (1) of the 1992 Act for the purposes of pay, continuity of employment and other matters the contract of employment continues in force until 'the determination or settlement of the complaint'.
2. We conclude that the applicant's complaint was not determined until the decision of the tribunal as to remedies which was made on 17 May 1999. We were referred to no decided authorities as to when the complaint is 'determined'. To treat it as determined on any other date would lead to anomalies and in any event in a case such as this when a compensatory award is made in favour of the applicant without deduction the practical effect on the amount of the award is unaffected, no matter when the complaint is held to have been determined."
"DECISION ON APPLICATION FOR INTERIM RELIEF
Under section 164 of the Trade Union & Labour Relations (Consolidation) Act 1992, I order that the applicant's contract of employment shall continue in force for the purposes of pay, seniority, pension rights and other similar matters, and for the purpose of determining for any purpose the period for which the employee has been continuously employed, from 20 October 1998 until the determination or settlement of the applicant's complaint of unfair dismissal. …"
"(1) If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply."
And then Section 163 (6) says:
"(6) If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (2), the tribunal shall make an order for the continuation of the employee's contract of employment."
"6. … Both parties accepted that reinstatement was not realistic. The respondent offered to re-engage the applicant in one of their other homes. Although initially the applicant indicated that he would agree with that, after further consideration he gave me reasons why he did not feel able to. These related to the fact that the respondent had challenged his competence as a nurse and had made allegations of criminal activity against him. He was concerned that, if he were to go back into the respondent's employment, he would be vulnerable to other allegations relating to his competence, which could be referred to the UKCC, which could damage his whole future as a nurse.
7 I accept that the refusal to return to work for the respondent is reasonable. Indeed, in view of the allegations of criminal activity made by the respondent against the applicant, it is difficult to see how the respondent could contemplate taking the applicant back, even in a different home, if the allegations have any substance in them. The allegations go to the root of any contract of employment and it is difficult to see how any employee could work for an employer who maintains such a claim. I also accept the vulnerability of the applicant in terms of his nursing registration. I accept that his refusal to be re-engaged is reasonable."
"(1) An order under section 163 for the continuation of a contract of employment is an order that the contract of employment continue in force … ."
And then it has, "for the purposes of pay" etc., in subparagraph (a) and "for the purpose of determining continuous employment" in subparagraph (b) and then it goes back to the main text:
"from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint."
What is a "complaint"? That relates back to Section 161 (1):
"(1) An employee who presents a complaint of unfair dismissal alleging that the dismissal is unfair by virtue of section 152 may apply to the tribunal for interim relief."
One also has to look to Section 167 (2) which says:
"(2) Those sections shall be construed as one with that Part; and in those sections –
'complaint of unfair dismissal' means a complaint under section 111 of the Employment Rights Act 1996."
"(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer."
And Section 112 (1) to (4) says:
"(1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of complaint are well-founded.
(2) The tribunal shall –
(a) explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and
(b) ask him whether he wishes the tribunal to make such an order.
(3) If the complainant expresses such a wish, the tribunal may make an order under section 113.
(4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal …"
And then it provides for the calculation of that and then it goes on:
"to be paid by the employer to the employee."
"If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply."
"6.2 That the Employment Tribunal erred in law and in the application of the relevant Statutes in finding that it was not just and equitable to reduce any award, either by reason of the Applicant's conduct or for any other reasons within Section 122 and Section 123 (6) of the Employment Rights Act 1996 nor under Section 158 of the Trade Union and Labour Relations (Consolidation) Act 1992."
"3. We make the following awards having determined that there was no conduct on the part of the applicant justifying any reduction in the award in his favour. We find that it is not just and equitable to reduce the award for any other reason within section 122 and section 123 (6) of the 1996 Act nor under Section 158 of the 1992 Act. No submissions were made on behalf of the respondent that we should reduce the compensation for any of these reasons."
"9. In the present case we are satisfied that the Tribunal did err in law in failing to explain its reasons for assessing the degree of contribution by the appellant at 25%. No explanation or reason of any kind was stated by the Tribunal for its assessment of the appellant's contribution at 25% … ."
"10. So far as future loss is concerned we consider that the applicant, having made fifty or so written attempts to obtain employment, had taken such steps as in the view of the tribunal was reasonable to mitigate his losses. …"