United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	IN PERSON
For the Respondent	Mr T Angell Representative 23 Wooley Terrace Bradford on Avon Wiltshire BA15 1AY


 


JUDGE PUGSLEY:

1. This is an appeal from a decision of the Regional Chairman of the Bristol region, Mr Christopher Tickle.
2. I do not want to labour this fact that I sit with members who have years of experience in industrial relations and years of experience in sitting on this Tribunal and we very much regret the atmosphere that has surrounded this case.
3. Mr Angell, who appeared for the Respondent is described as consultant employment lawyer by which we presume that means he has a legal qualification. Mr Secrett to whom we do not want to cause embarrassment was at one stage a Solicitor. We are seeking to try and find a way that is as fair as we think possibly can be to both parties and to minimise the animosity between the parties.
4. Without going into great detail, the reality is that, what has happened is that in the case of Mr O'Donnell and in the case of Ms Broadhurst, whose appeals it is agreed are consolidated in one hearing is that difficulties have arisen as to the interpretation of what the Tribunal actually found.
5. The learned President of this Tribunal, Mr Justice Morison gave a preliminary judgment about certain matters being arguable. In the case of Mr O'Donnell, Mr Tickle's judgment, he sat alone, reads at paragraph 3 thus: -

"The applicant has mitigated his loss. He got work straightaway with another firm of solicitors. That was a clerking job, but at the same salary – so there is no loss on a day-to-day basis. He started on 2 March 1998. The Law Society is likely to decide that it regards this as a period of training, but they are unlikely to do so until the middle of December. It will be backdated, but it does mean, and this is very important, that the applicant is unable to qualify as a solicitor until then. He took the final examinations in August 1998 and passed. Had the contract with Mr Secrett run its course, the applicant was in a position, as of about 1 September 1998, to apply for a job as a qualified solicitor. On the evidence, I find that the rate of remuneration would have been in the order of £18,000.00 a year. Because of the breach of contract by Mr Secrett, this opportunity had been delayed some 3 months or so. I have no doubt that when Mr O'Donnell passed his exams in August, he would have terminated his training contract with Mr Secrett by agreement. In accordance with Clause 19, since there was no reason for it to continue. He was now fully trained. On balance of probabilities, he would then have started a job with Mr Secrett on or about 1 September 1998 at the salary identified. It follows that the breach of contract has put back his enhanced earning opportunity by some 3 months, and that that is a wholly foreseeable consequence of the breach of contract. I therefore award damages for loss of this chance in the sum of £3,400.00, which is net of tax and national insurance, and represents 3 months' lost earnings".

6. Mr O'Donnell was at the hearing as was Mr Angell. What Mr Angell says, is that in his submissions to the Chairman, he was putting forward the argument that Mr O'Donnell lost the period by which was now going to take him that much longer to qualify, namely 3 months, but that in subsequent years he would lose year on year, because his salary for the purposes on increment was going to be deferred by another three months every year. Realistically Mr Angell accepts there comes a time where that loss fades away.
7. The difficulty we have is that is not what the decision says; it is true that at various points in the other decision, there is a reference to opportunity and chance. If it be the case that all that he was being compensated for was the deferring by three months of his training contract then we find it difficult to see why Mr O'Donnell should not be required to give credit for such sums as he earned on general principles of mitigation a loss. If on the other hand he was being given a global figure for the loss not only of those three months, but a loss in successive years, different considerations would apply.
8. In the case of Miss Broadhurst, the Tribunal put it slightly differently. They put it like this in paragraph 4: -

"Her final training course has not been fixed. The earliest she could have sat her final exams was November 1998. She considers that because of her experience working for the Crown Prosecution Service prior to 1997, it is likely that the training contract would have ended on 27 November 1998. She would then have been a qualified solicitor and able to earn money as such. On the evidence that she presented. I am satisfied that she could have expected to earn £22,000.00 per annum. Her loss of a chance, which was a foreseeable consequence of the breach of contract. I assess at the rate of three-quarters of £22,000.00 per annum, less tax and national insurance. That is £12,375.00. That represents 9 months' salary as a new qualified solicitor. The breach of contract had put back her opportunity to earn that by 9 months. The first respondent is therefore ordered to pay damages to the applicant in that sum".

9. Now it is right that Justice Morison, suggested that subject to the mitigation of loss he though that that was an approach that could not be criticised. We are concerned as to exactly what is being said, and we are concerned that as to exactly what is meant by her loss of a chance which is a foreseeable consequence of the breach of contract.
10. Having heard argument on both sides, we are unsure whether the Chairman is referring again to a specific nine months period, or as we understand it, the argument being put by Mr Angell, which has not surfaced in the decision in clear and unequivocal terms, whether it includes subsequent loss. It is only right we should say that we are aware much the delay has taken place.
11. What was then in the future is now in the past and that is why we consider that it is and should be a matter for the Employment Tribunal to quantify the position. Whether that helps Mr Secrett or the applicants we know not. But we think that it is not a matter where we could ourselves substitute our judgment, because we think there are a number of factual issues which are raised. For the avoidance of all doubt we allow this appeal only to a limited extent. The extent to which we allow it, that both parties are now free to present such argument and call such evidence as is appropriate on this issue, namely the extent of which the employees suffered from the premature termination of their training contracts not only as to the extent of which it put back their date of qualification but the consequent loss, if any, in subsequent years.
12. We consider it should go back to the same Tribunal, if we may put it in this way, "lock, stock and barrel". It may be, we know not, but it may be there may be an issue as to the rate of salaries that Mr Secrett may wish to raise or indeed the appellants may wish to raise. We believe this fair. We consider it is fair to Mr Angell because he says that the reasons he argued are not the reasons given for the award in the decision. We do think that Mr Secret has got a point, as we have indicated, that the applicant ought to account for what money was earned, if any, if the compensation is limited to the three month period up to qualification.
13. Mr Angell has raised the question of costs. He says he was not allowed to speak at the ex parte hearing. We think that what he means by that, was no issue arose in which he had a right of audience There are restrictive rules as to costs and we do not think event we could possibly stigmatise Mr Angell, as acting unreasonably, nor Mr Secrett, we do not think it is appropriate to make any order for costs as far as this appeal to this Tribunal is concerned.