United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D PARRY Solicitor Messrs Darbys Mallam Lewis 52 New Inn Hall Street Oxford OX1 2QA


 


JUDGE JOHN BYRT: This is a Preliminary Hearing in an Appeal against the decision promulgated on 3rd August 1998 of an Employment Tribunal sitting in Bristol. By their decision, they held that the Employers had subjected the Employee, Mr Kerrigan, to discrimination under the Disability Discrimination Act and awarded him compensation for that discrimination in the amount of £7,519.39 for financial loss and £4,500 for injury to feeling. There is no Appeal against the finding of discrimination. The Appeal relates solely to the award of compensation. However, notwithstanding that, I think it is essential that we should recite something of the background facts of this case.

Mr Kerrigan was employed by the Respondents between 1972 and 1997 as a press shop maintenance fitter. Until July 1993, he worked at Cowley and thereafter, he was transferred to Swindon. Mr Kerrigan suffered from severe chronic asthma, at Swindon particularly, and this resulted in frequent absences. The Respondents operated an Attendance Improvement Scheme which, put starkly, consisted of two warnings in relation to absences, together with a final warning which was usually accompanied by dismissal. Exemptions at Cowley were in respect of cancer, multiple sclerosis, heart disease and asthma. So Mr Kerrigan would have been alright had he remained at Cowley. However, at Swindon, the exemptions only consisted of cancer, multiple sclerosis and heart disease but not asthma.

As a result of his disability, Mr Kerrigan was absent regularly from work and he was taken through the preliminary procedures prior to a dismissal. On 3rd March 1997, a final, formal discussion took place and everybody attending that meeting anticipated that dismissal would follow. Further discussion was adjourned because Mr Kerrigan had applied for TIER and it was not known yet what the result of his application was. Eventually, his application was successful and therefore, on 2nd May 1997, he left his employment.

The Employment Tribunal found that Mr Kerrigan was disabled, was treated less favourably as a result and that the Respondents had failed in the discharge of their duty to so order things that such discrimination did not occur and they had no justification for that failure. In any event, that was the decision of the Employment Tribunal on 3rd April 1998.

There followed a Remedies Hearing on 13th July 1998. On 26th June of that year, the Respondents wrote a letter to Mr Kerrigan in which they apologised for the distress that they had caused him by discrimination the Tribunal had found. They then went on to offer him three specific jobs, together with another suggestion that if there was any idea of a job that he felt he could do which they had not named he should tell them and they would also consider that.

The Tribunal came to the conclusion that Mr Kerrigan was under a duty to mitigate his loss. They then went on to say at the age of 57 that with a poor attendance record such as he had, the best hope he had of obtaining further employment was with the Respondents and that in the circumstances, his failure to take up that offer of 26th June, was in effect, sheer folly. They say it is inconceivable that he would not have taken up that offer and accordingly, they established that Mr Kerrigan had failed to mitigate his loss. They went on to say they were satisfied that had he taken up the Respondents' offer of employment, the balance of probabilities were that he would have been in another job with the Respondents by 30th August 1998. Accordingly, they took that as a shut-off date for the awarding him of compensation.

Mr Parry has today argued the case on behalf of Mr Kerrigan. He first submitted that the Tribunal had got the burden of proving the duty to mitigate loss, wrong. He said that the Tribunal placed that burden upon Mr Kerrigan to prove that he had mitigated adequately and reasonably, rather than with the Respondent on proving his failure to mitigate loss. We take the view that it is unarguable that this is the conclusion to be drawn from the Reasons. The burden of proof does not appear to have come into the question at all, so far as the Tribunal's findings are concerned. They found the case for saying that Mr Kerrigan should have accepted the offer was overwhelming and they put it in the way I have already recited to the effect that it was inconceivable that he did not take up that offer. Burden of proof never really came into the equation and accordingly, we do not think that that point is arguable.

The second ground of appeal is that, having recited in para 10 of their Reasons the grounds Mr Kerrigan had for distrusting the Respondents, their finding that the cut-off date of 30th August was a fair and reasonable date was a perverse finding. We take the view that the Tribunal adequately set out in para 10 of their Reasons, all the factors Mr Parry has been urging us to take into account, and to us, it is plain that the Tribunal had those matters well in mind when considering whether Mr Kerrigan should have accepted the offers contained in the letter of 26th June. We find it unarguable that the Tribunal's findings in this respect were perverse.

There is a third point: having said that the cut-off date was 30th August, the Tribunal failed to consider whether there was any continuing loss thereafter. Mr Parry has argued that what should have happened is that the Tribunal should have assessed for themselves the nature of the job that he could have obtained following the 30th August and the amount he would have been paid for doing it. If that sum was less than the wage he was being paid before his dismissal, he was entitled to have that difference used as the basis of a calculation of a continuing loss. It is our view that the Tribunal did not, in fact, give their mind to this particular issue and we think that it is certainly arguable on behalf of Mr Kerrigan that they should have done. Accordingly, we give leave for this matter to go forward to a Full Hearing in respect of that ground of appeal.

There is another ground urged by Mr Parry to the effect that the Tribunal's approach was perverse, bearing in mind the evidence that there was, that Mr Kerrigan had fallen out with his work colleagues and the Respondents' management. We do not think that this point is arguable. The Tribunal's Reasons show that they had this aspect, including Mr Kerrigan's own witness statement, well in mind.

There is a last point which is urged by Mr Parry. He says that in the ultimate calculation carried out by the Tribunal of Mr Kerrigan's loss, they deducted periodical payments made to him pursuant to the Respondents' Contributory Pension Scheme from his wages loss. He submits that this was an error on the Tribunal's part. Looked at as a pure point of law, we think that this is a matter which is again, arguable. The question is whether Mr Parry, on Mr Kerrigan's behalf, should be allowed to argue this point. It would involve amending his Notice of Appeal.

We think that this point should go forward to a Hearing and at that stage, the Respondents to have the opportunity of submitting whether this point is one Mr Parry should be able to argue. It is there in his Notice of Appeal. He however, on 13th July, had accepted that the deductions were legitimate. It seems also that the Respondents' Counsel, in submitting a counter-schedule, had agreed the same point. So both Mr Parry and his opponent have been guilty of the same error of law. For all that, it is extremely difficult for anybody who has made an omission in relation to a matter of this sort, to be able to retract it and have the opportunity of rearguing it. We think that it would be wrong for us to give leave at this particular stage that he should do so. The Respondents are not here represented. We think that that aspect of what we have to decide should be adjourned to the Tribunal hearing the other matters relating to this Appeal.

There is also an application made by Mr Parry for the admission of two letters which were exchanged: one written by himself to the Respondent dated 5th August and the Respondent's reply of 11th September. Both those letters were sent after the assessment of compensation on 13th July. He seeks to adduce those letters as new evidence in this matter. We think that a decision about this should be taken by the Tribunal which hears this matter fully at a subsequent hearing. It could well be that if this Tribunal came to a particular decision, there would be no need for him to make the Application. In any event, we think the decision should be left with the Tribunal which hears this matter later. That is our decision.