United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR N BOOTH (of Counsel) Instructed by MS S GILBERT Solicitor NUJ, Acorn House 314-320 Gray's Inn Road London WC1X 8DP


 


MR JUSTICE LINDSAY: We have before us as a preliminary hearing the appeal of Ms A I Brandao in the matter Brandao against Globo International (London) Limited.

1. There was a hearing on 14 December at London (North) before the Chairman Miss A M Lewzey and two members promulgated on 6 January 1999. Then (as also before us) Ms Brandao appeared by Mr Booth of Counsel. Ms Brandao lost her claim for sexual discrimination and disability discrimination but she did succeed as to unfair dismissal but the Tribunal cut down the award that otherwise would be available in her favour by concluding their paragraph (v) "it is just and equitable that the percentage reduction of 80% should apply to the basic and compensatory awards".
2. There are two familiar types of percentage reductions, one broadly called "contribution", which is a convenient label to discuss the reducing mechanisms of section 122(2) and section 123(6) of the Act. It is applicable when the conduct of the complainant or some action of the complainant make it just and equitable to reduce the award – that is one class of reduction. The other, broadly called "Polkey" by reference to the House of Lords case of that name, is where the position is that the Employment Tribunal has to reflect that even though an employee has been dismissed improperly (so as to lead to the likelihood of an award in his or her favour), there was in any event a likelihood that he or she would, after what is usually a short interval, have been able to have been and would have been dismissed properly.
3. The Tribunal here dealt only with "contribution" and not with "Polkey", although, in effect, Mr Booth tells us that they were addressed to some extent on that but not on contribution. It is only on the contribution side of things that Ms Brandao seeks to appeal. Mr Booth relies on a quotation from Gibson v British Transport Board and we see great force in that citation. The question of law on this part of Mr Booth's prospective appeal is whether, on the facts as found by the Employment Tribunal, it could be said that Ms Brandao had contributed to her own dismissal by way of some blameworthy or improper conduct. If all that was said against her (as seems to be the case) is that during periods when she had been given medical certificates and had supplied them to her employer, indicating general debility and panic attacks, she nonetheless made little contact with her employers and had given no indication as to when she might be in a position to return to work, could that possibly have been properly held to have amounted to blameworthy or improper conduct? We see that there a point of law emerges. It is a point of law that merits the matter going to a full hearing.
4. The second ground that Mr Booth raises is that Ms Brandao's contribution was never addressed at all by the parties before the Employment Tribunal and he draws our attention to Slaughter v C Brewer & Sons EAT (1990) ICR 730, a case which has many parallels with the case before us and which draws attention to the need for an Employment Tribunal to indicate to the parties that it is moving on to the subject of contribution if it is minded to do so and also draws attention to the fact that there can be a need for evidence directed specifically to the question of contribution. Mr Booth tells us that not only was there no argument on contribution, there was no evidence on it either. We see that also to be a proper argument of law justifying the matter going to a full hearing.
5. There does need to be some caution in going forward because, given that Polkey was not ruled upon by the Tribunal, it could be here (it is not us to decide) that Polkey in any event would have reduced any award to Ms Brandao substantially and it is worth both sides considering, as they prepare for a full appeal, whether the game is worth the candle because if contribution is swept aside only to have Polkey in its place, it might be that the appeal has little financial content in it. But that is just a cautionary matter for both sides to take into account. We permit the matter to go to a full appeal, both on the question of law as to whether what was found as contribution could have been contribution in any case and also as to natural justice. Skeleton arguments are to be exchanged not less than 14 days before the hearing. Authorities to be relied on by either side should also be photocopied and sent to the EAT office not less than 14 days before the hearing. Non-compliance with either of those two directions may lead to an adjournment and an adjournment may lead to an Order for costs. We will invite Mr Booth to indicate whether we need to make a request for the Chairman's notes as to any argument or evidence relating to the subject of contribution in order that the negative that he wishes to assert, namely that contribution was never raised, can be pointed to.