United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS SALLY ROBERTSON OF COUNSEL INSTRUCTED BY MESSRS IRWIN MITCHELL BRABY & WALLER SOLICITORS ST PETER'S HOUSE HARTSLEAD SHEFFIELD S1 2EL
For the Respondent	MR M BRIGHT DIRECTOR SPACE ENTERPRISE LTD PO BOX 77 ASHFORD MIDDLESEXC TW15 2XN


 


JUDGE WILSON:

1. This preliminary hearing has been yet again a clearer example of the value of service of ELAAS of both to the Tribunal and to the litigants and we are grateful to Mr Quigley for the clarity of which he has concentrated on the points that arise in this case.
2. With his agreement, the preliminary hearings in both cases have been taken together because the points at issue are similar. The cases were heard together by the Employment Tribunal. The facts of the matter were found and may be briefly stated for the purposes of this judgment. There was a company called Scanfuture Limited which went into voluntary liquidation and some of the work that Scanfuture Limited had been doing was carried on by its previous employees who were working for Scanfuture UK Limited. That was a company which had been in existence for 2 years and in operational existence for 2 years so there was no question of it being an enterprise set up to take over from Scanfuture.
3. The Tribunal set out its findings in a lengthy judgment and, in particular, they dealt with their conclusion that the transfer of undertaking regulations applied in paragraph 10 of their decision. That is a lengthy paragraph and sets out the aspects of fact which they concluded supported their findings that the transferred provisions did apply. Mr Quigley on behalf of the Appellants has drawn this Tribunal's attention to the decision of the Employment Appeal Tribunal. In the case of Charlton v Charlton which was reported in the industrial relations law report for 1995 at page 79 and in particular he relies on the first part of what Mr Justice Mummery as he then was stated in his judgment at paragraph 16. Furthermore, Mr Quigley submits that there is an issue to go forward for full argument concerning the possible complaint about a breach of the European Convention on Human Rights at clause 6.
4. Having heard the argument we are satisfied that full argument should be heard on both questions in other words, full argument should be heard on the question whether it was open to the Employment Tribunal properly directing themselves in law and properly taking account of the Employment Appeal Tribunal's judgement in the case of Charlton to conclude that the transfer of undertaking of provisions did apply and secondly, full argument on the question whether the Employment Tribunal is "an independent and impartial" Tribunal in relation to a determination of claims brought by complainants against the Secretary of State for the Department of Trade and Industry.
5. These are, particularly the second points, serious points and we categorise the matter, therefore, category A and we make a time estimate of one day for the appeal.

JUDGE WILSON:

This has been the final hearing of argument on the one matter upon which at the preliminary hearing this Tribunal definitely constituted ordered that there should be full argument. That point was the second ground set out in the Notice of Appeal:-

"To the extent that the Tribunal relied on its own general knowledge of temporary employment opportunities during the relevant period and in making the percentage reduction for failure to mitigate [see para 11] the Tribunal erred in law, misdirecting itself on the proper approach to the assessment of compensation in respect of pass loss - see Gardiner-Hill v Roland Berger Techniques Limited [1982] IRLR 498."

In her submissions amplifying her skeleton argument before us today, Miss Robertson, who has represented the Appellant has submitted that it is quite plain from the judgment in Roland Gardiner-Hill case that it is a duty on the Respondent to produce evidence of failure to mitigate and she referred us also to Stuart v Ministry of Defence [1996] at page 554, in particular, 555 letter b where the matter is stated quite plainly:

"The burden of proving a failure by the Applicant to mitigate loss of earnings is on the [Respondent] and it is for the [Respondent] to provide the Tribunal with evidence on which to base a finding of a failure to mitigate or a quantification of any consequent reduction in the value of the claim and not for the industrial tribunal to remedy gaps in the evidence on the basis of its own knowledge and experience."

Elsewhere, in that judgment, at page 562 letter (g), the matter is put in this way:

"If a Tribunal is to be invited to consider whether or not there has been a failure to mitigate or if there has been such a failure, the quantification of any reduction in the value of the claim, it must be provided with the evidence with which to perform its task, either arising from cross-examination or from evidence called by the [Respondent]."

In so far as evidence is available in a case as a result of questions asked of the Applicant, its seems to us that that is bound to be tainted by the application of local knowledge if the questioning is by members of the Tribunal. The evidence is not the question but the answer, but the answer is based on the local knowledge of the Tribunal members who asked the questions and therefore it seems that the more potent requirement is for evidence from independent sources to be put forward. Newspaper cuttings of job availabilities at the current time lists from job centre offices and what opportunities they had on their books at the relevant time and so on and it is quite plain from the authorities that the duty of providing that evidence is on the company saying that insufficient effort has been made by the Applicant.

Miss Robertson put it in this way. She said that there was nothing for the expertise of the Tribunal as an industrial journey to work on because in this case what was involved was temporary ad-hoc work dependent on various childcare arrangements which might be made. There was no evidence of quantum with regard to the dates. She invites this Tribunal to find for the Applicant and to decide that we have sufficient information to substititute our own decision because what is an issue is the amount by which the loss of earnings was reduced for what the Employment Tribunal found had been a failure to mitigate loss. That is quantified at page 6 of their remedies decision in the sum of £978.75. That is what the Appellant today claims.

6. Mr Bright who has conducted the case for the company says that the period in question was between the 5^th May 1998 and the 16^th August 1998 but that the remedies hearing when evidence should have been produced was not until February 1999 so that in that sense the period in question was already history. In any case he says that the company relied on the offer of work which was set out in paragraph 6.1 of the decision. He reminded us that the Applicant had been offered what he called suitable work by the Respondent carrying out data processing work by arrangement with the company for which Mr Bright's wife worked and he claimed that was suitable work which was never accepted the Applicant and he said that that was really what was relied on by the company before the Employment Tribunal.
7. Unfortunately, the Tribunal did not consider that that was in fact suitable work because the conclusion at paragraph 11 it is stated:-

"The Tribunal does not consider that there should be any reduction for failure by the Applicant to consider the offer of alternative work by the Respondent. It must follow therefore that they did not take the view urged upon them by the Respondent that that was suitable work."

8. Having regard to the authorities and to the submissions that have been made to us today, it can almost be said that it is common ground that the company did not provide evidence of alternative work which was available and which was not pursued by the Applicant. It is quite plain from the decision that what was relied upon were the answers given to questions the Tribunal put which must have been based on their own local knowledge. It is equally plain that that was an error in law and accordingly there should have been no reduction of the amount that was awarded in respect of loss of earnings. This does seem to us to be one of those cases where in the interests of there being a conclusion to litigation and in the interest of cost to all, we should substitute our own decision. We have all the information that is necessary because it is one simple figure.
9. Accordingly, we find that the amount awarded by the Tribunal for loss of earnings should not have contained a deduction for failure to mitigate loss and should therefore have been for £1,957.50 instead of £978.75.