At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MR R THOMSON
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | ROY LEMON (Counsel) Instructed By: Messrs Orchards Solicitors 99 Bishopsgate London EC2M 3YU |
JUDGE PETER CLARK:
1) Parties have had more than sufficient time to request Extended Reasons but did not do so until 8 August.
2) The Chairman has closely examined the summary reasons given and has reached the conclusion that nothing can be added which might assist you further. The Solicitors then instructed Counsel, Mr Roy Lemon to settle a Notice of Appeal, which he promptly did.
a) Notice of appeal from refusal of Employment Tribunal to give Extended Reasons.b) Application for the Employment Appeal Tribunal to exercise its discretion to hear appeal without extended reasons.
c) Application for Leave to Appeal out of Time.
d) Notice of Appeal from decisions of Employment Tribunal in respect of wrongful and unfair dismissal.
e) Notice of Appeal from decision of Employment Tribunal to refuse a review.
Insofar as head (c), the Application for Leave to Appeal out of Time was concerned, that application was considered on the basis of written representations from the parties by the Registrar who by Order dated 20 November 2000, refused the application. There is no appeal against that Order. It follows that the appeal against the review decision, ground (e) of the Notice cannot now be entertained, it being out of time.
1. The Chairman was entitled to dismiss the application for Extended Reasons made out of time. No good reason for the delay was advanced. Awaiting the outcome for the review application is no excuse for the Solicitors failure to apply at that time for the Extended Written Reasons. We think the position is similar, although not precisely the same as the practice of the Employment Appeal Tribunal on application for permission to appeal out of time. See United Arab Emirates v Abdelghafar [1995] ICR 65.
2. The Chairman's statement that nothing can be added to the summary reasons given which might assist you further is equivocal. It either means that he had nothing to add, full stop, as Mr Lemon submits, or that nothing which he could add would assist their cause. In these circumstances, we must look at the grounds of appeal against the substantive decision to determine
a) Whether the summary reason are sufficiently full to allow a proper determination of the appeal in whole or in part.b) if so, whether those grounds raise any arguable points of law, which ought to proceed to a full hearing.
3.SUFFICIENCY OF REASONS
1) As to the Tribunal's liability decision, the complaints are that the Tribunal failed to make necessary express findings of fact and/or reach perverse findings. It seems to us that such contentions necessarily require Extended Reasons from the Tribunal. It would be wrong for us to adjudicate on such allegations on the basis of summary reasons only. Accordingly, we rule that the appeal against the Tribunal's liability decision both on unfair dismissal and wrongful dismissal will not be permitted to proceed on the basis of summary reasons only.2) A point is now taken that the Tribunal was wrong to take as the period of continuous employment for the purpose of first, the Applicant's entitlement to notice and secondly the basic award. The full period agreed on the pleadings, apparently 9 years but treated as 10 years by the Tribunal. The difficulty is that there is no finding of fact by the Tribunal to support the point now taken that there was no break in service on 26 March 1996 although Mr Lemon assures us that that appeared in the Applicant's own witness statement which form part of her evidence before the Tribunal. First it may be said that the summary reasons are not adequate to deal with this contention but more materially we think this seems to be a new point taken for the first time on appeal. Not only would further findings of fact be required but the Tribunal would be required to decide as a matter of law whether or not there had been a break in continuous employment at that stage in the Applicant's career. In the absence of any exceptional circumstances, we shall not allow that new point to be taken. See Jones v Burdett Coutts School [1998] IRLR 521.3) A point taken by Mr. Lemon on the Tribunal's finding at paragraph 6b of their Reasons awarding a sum of £1,008 to the Applicant in respect of a shortfall on earnings during the period of suspension from the 21 September to 12 October 1999. His complaint is that that finding is not explained in the body of the reasons. Again it seems to us that the point cannot properly be decided on the basis of summary reasons only.3. The final point on remedy is this. Mr Lemon submits that the effective date of termination of the contract was, by common agreement, 8 October 1999. In assessing compensation for unfair dismissal the Tribunal calculated the total loss sustained by the Applicant as a result of the unfair dismissal excluding the basic award, a £250 loss of statutory rights plus £15,436 loss of earnings. However they did not apply the statutory cap of £12,000 to that award. The limit was not raised to £50,000 until 25 October 1999. Dismissals before that date did not enjoy the increased ceiling. This, he argues, is a pure error of law on the face of the decision which can and should be argued without the need for further reasons or findings of fact by the Tribunal. We see the force of that argument and shall assume that Mr. Lemon is correct in so submitting. Thus on the statutory limit point only we move to the final stage.
4. ARGUABLE POINT OF LAW
It is arguable in our judgment, that for the purposes of the raised ceiling on compensatory awards, in the case of summary dismissal, the notional contractual notice period cannot be added to take the Applicant past the relevant date, 25 October 1999. However, the Tribunal here found that the Applicant was not only unfairly dismissed but also wrongfully dismissed at common law. In assessing damages for wrongful dismissal, avoiding any double recovery between the two awards, the Tribunal limited those damages to the notional 10 weeks notice period, together with a sum for reduced earnings during the period of suspension up to dismissal. In our view it is further arguable that had the Tribunal approached compensation correctly, they would have found that the compensatory award for unfair dismissal was subject to the statutory limit of £12,000 as Mr. Lemon submits, but would then have gone on to find as a head of damage for wrongful dismissal, that as a result of the employer's breach of contract in dismissing the employee summarily without cause, she had lost the right to enjoy the increased statutory ceiling which would have come into effect during the notice period. Accordingly, her damages for wrongful dismissal ought to have been increased by the difference between the limit of £12,000 and the actual loss £15,686, that is £3,686. Such an approach is, we think arguably consistent with the approach of the Court of Appeal in Gunton v Richmond [1980] ICR755 whereby the Claimant was entitled to recover by way of damages on his unlawful summary dismissal, in addition to pay during the notional notice period, wages which he would have received during the period of time that the contractual disciplinary procedure would have taken to be exhausted.