United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR A GEORGE (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR JUSTICE CHARLES: The parties to this appeal are a Mr Blowman and a company called Lumonics Ltd and a Mr Mel Smith. The matter comes before us by way of a Preliminary Hearing.

1. The appeal is against the decision of an Employment Tribunal sitting in Hull, the Extended Reasons for which were sent to the parties on 4 August 1999. The decision that is the subject of the appeal is in paragraph 1 of the Decision and Extended Reasons which orders the First Respondent to pay the Applicant the sum of £11,649 as compensation for unlawful discrimination. Additionally the Employment Tribunal declared that the Applicant was unfairly dismissed by the 1^st Respondent but made no award of compensation in that respect, and they made no award against the 2^nd Respondent.
2. The essential subject matter of the appeal is the amount of money that the Tribunal ordered should be paid. As is apparent from that, the decision was one reached at a Remedies Hearing.
3. Mr Blowman today has had the benefit of being represented by Mr George under the ELAAS scheme. Prior to that representation he had prepared a Notice of Appeal and helpful skeleton argument. In our judgment the matters raised in the Notice of Appeal, as explained and expanded in the skeleton argument before us, raise points of law that are reasonably arguable.
4. As to the first point contained in paragraph 6(a) of the Notice of Appeal and which relates to Permanent Health insurance, we have not seen the relevant insurance documentation. We made the point during the course of the hearing that if that documentation revealed something that renders this point unarguable Mr Blowman would be at risk as to costs. Generally we would add that this is only a Preliminary Hearing and we are necessarily reaching only a preliminary view and the fact that we have allowed an appeal to proceed does not necessarily mean that no order for costs can be made against the Appellant. On the information before us we consider that this ground of appeal raises a reasonably arguable point of law.
5. As to the grounds in paragraphs 6 (b), (c) and (d) of the Notice of Appeal, in argument and in our view correctly Mr Blowman dealt with them together. In broad terms these grounds divide into two.
6. Firstly, they relate to the treatment of start-up costs and the way in which Mr Blowman asserted these were being ploughed back into the business. This has a knock-on effect as to the income Mr Blowman had received, and would be likely to receive, from the business in calculating his loss. Secondly they relate to the Tribunal's conclusion that the turnover of the business would reach an annual turnover of £40,000, the information before them being a seven-month turnover of only £14,000. It is, of course, perfectly possible that in the remaining five months turnover could increase, but the Tribunal's reasons for finding that there would be such an increase do not appear from the Extended Reasons.
7. In general terms in respect of these grounds of appeal we have concluded that it is reasonably arguable that the Employment Tribunal either they erred in their approach, or that their conclusion was perverse, or that they did not give adequate reasons to explain how they reached the conclusions that they did.
8. The skeleton puts the point as to start-up costs slightly differently to the way in which it is put in the Notice of Appeal and we will give leave to amend the Notice of Appeal to make the point as to start-up costs which, as we understand it, is the failure of the Tribunal, in the face of uncontroverted evidence, to recognise and deal properly with the point that certainly for the period that had by then passed income or set up costs was being ploughed back into the business. In identifying that point we are not trying to draft the amendment, we are simply identifying the nature of the amendment.
9. We will direct that an amendment to the Notice of Appeal should be lodged here within 14 days. Then our Practice Direction and Guidance Notes will apply as to that amendment.
10. Paragraph 6 (e) of the Notice of Appeal relates to the assessment of damages on injury to feelings. Again we accept, without having gone into the Personal Injury authorities, that this raises a reasonably arguable point on the basis that either the Tribunal did not ask themselves the correct questions having regard to the Personal Injury authorities, or that they took into account matters which they ought not to have taken into account, or that they did not explain their overall conclusion adequately.
11. Again in this context we point out that if having looked at the Personal Injury authorities (which we have not been referred to) this Tribunal concludes that our view that this ground raised a reasonably arguable point was wrong they can deal with the matter appropriately in respect of costs at the final hearing.
12. Paragraph 6 (f) of the Notice of Appeal concerns a small amount in respect of money, but it does appear to us to be reasonably arguable, having regard to the terms of Regulation 6 (1) (a) that the Tribunal erred in law in their approach to the assessment of interest.
13. We will therefore direct that this appeal proceeds to a full hearing. We give this appeal Category B and a time estimate of one day.
14. So far as Notes of Evidence are concerned, we will invite the Chairman to provide Notes of Evidence of Mr Blowman's evidence in respect to his new business and thus his evidence relating to their assessment of its turnover and his likely income from that business. We understand that in fact that is the majority, if not all, of Mr Blowman's evidence before the Employment Tribunal at the Remedies Hearing.
15. We will also direct that Mr Blowman ensures that copies of his relevant books of account are prepared in a bundle, so that they will be available to this Tribunal. We understand that they were not in the bundle before the Employment Tribunal and we would invite the parties to agree an appropriate bundle being extracts from the bundles and additional documents that were before the Employment Tribunal. In that sense we do not expect the parties to spend a long time trying to reach agreement we simply expect them to ensure that any document that was before the Employment Tribunal and which either of them wishes to be before us, is before us.
16. So we do not invite them to argue as to whether a document is relevant or not. We just want all the documents in a composite bundle that either of them thinks they might wish to refer to.
17. So far as other Notes of Evidence are concerned, we understand that evidence was given at the Tribunal on behalf of the employers relating to the Permanent Health insurance. At this stage we do not invite the Chairman of the Tribunal to produce his Notes of that evidence. If the employers wish to have such Notes of Evidence before the Tribunal they will have to apply for them. A first stage in that process would be to invite Mr Blowman to agree the substance of that evidence. If he does agree it then there will be no need to trouble the Chairman for his notes.