At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)
MRS R CHAPMAN
MR D J JENKINS MBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
PRELIMINARY HEARING
For the Appellant | NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT |
MR JUSTICE LINDSAY (PRESIDENT): We have before us here as a preliminary appeal the appeal of Mr David Henderson in the matter of Henderson against Northern Leisure Plc.
"The applicant was unfairly dismissed for a reason related to the transfer of the Tivoli Nightclub to the respondent. The respondent is ordered to pay the applicant the sum of £4,980 subject to Recoupment Regulations."
"However, we accepted Mr Smith's submission [he was appearing for the employer] that the applicant bears the burden of proof when it comes to proving his loss as a consequence of the unfair dismissal. The applicant tells us that he has earned no money since he ceased working for Tivoli Nightclub, and he tells us he has been in receipt of Job Seekers Allowance of some £121 a week. We were not satisfied that he had taken sufficient steps to find himself alternative employment. It was evident from the earlier hearing that the applicant had ambitions to embark upon a career in health and safety, and he told us that he has been taking courses and applying to go on courses in this area. The lack of earnings from this cannot in justice, be laid at the respondent's door."
The Tribunal considered:
" … he should realistically have been looking for a job at a lower rate to tide him over whilst he bettered himself. The Tribunal were unimpressed by the applicant's evidence of efforts he had made to seek employment. He had not secured a single interview which surprises us for a man of his capabilities. … he should have been prepared to work for lesser pay very much sooner."
And then finally:
"… the Tribunal was of the view that the applicant should only receive compensation for the period of twelve weeks. That is twelve weeks at the rate of £325 net per week which amounts to £3,900."
And then they go into the rest of the computation.
"The grounds upon which the appeal is brought are that the industrial tribunal erred in Law in that:-
'The tribunal made an award based on the grounds that the Appellant 'failed to look for work at a lower rate of pay and sooner'. The Appellant would argue on two points. Firstly that in evidence this assumption was incorrect. Secondly the appellant was in receipt of 'JOB SEEKERS ALLOWANCE' and to this end was required by law to meet strict Government guidelines that were checked every two weeks and which were met.
The appellant would argue that the Tribunal has set a level of proof or has set a separate standard that is outside and above the boundaries of evidence required by the Government to consider entitlement for the benefit of Job Seekers Allowance and by doing so set an 'unobtainable level' of proof."
"I wish this matter to be reviewed regarding the following points;
1 The figures quoted and the calculations (£4980.00) are correct [he then explains that].
2 That the Tribunal has not taken into consideration the following points, which were given in evidence at the time, when deciding that the Applicant 'has failed to secure paid employment' – 'Should have sought employment at a lower rate earlier', and has only awarded 12 weeks' pay, a figure that I feel in fairness should be a longer period."
And a little later, he says:
"That the applicant has proved that he has made every conceivable effort to obtain work, not only in his profession but in any number of other jobs from Civilian Police Posts, to salesman to accident investigations to vehicle inspectors with the DTI."
He continued:
"Attached are copies of newspaper cuttings and replies received from applications made, further applications have been via Internet to jobs advertised on the World Wide Web and via agencies. The attached copies show the dates and rates of pay offered.
The applicant has never ceased to search for work from the first day of unemployment, he has not refused to apply for any type of work in relation to pay scale whatsoever and has incurred substantial cost and expense to carry out these searches and applications."
"The statement in Para 17 of the extended reasons that the applicant 'should' have sought employment at a lower rate earlier is challenged, and more generally it is contended that the period taken for awarding loss of earnings should have been longer in fairness."
And then, in paragraph 4 of the decision, declining the review:
"Regarding the question of the period for calculating loss, the applicant attaches to his letter evidence of his search for other employment which was never put before the tribunal when remedies were considered on 24 September 1999. It is clear from perusing that evidence that there is no reason why its existence 'could not have been reasonably known or foreseen at the time of the hearing' within the meaning of Rule 11 (1) (d). It was up to the applicant to produce that evidence at the hearing. The applicant does not suggest that the evidence was unknown or unforeseeable. Further about half of the evidence post dates the hearing and is therefore irrelevant to this application."
And a little later, in their paragraph 5, they say:
"The applicant was made fully aware of the need to be prepared to present his evidence at the date set for hearing."
And then, in their paragraph 7:
"The issue of compensation was heard and decided by the tribunal on the basis of the evidence given by Mr Henderson on the day. The tribunal, which includes two lay members with considerable experience of local employment conditions, found that Mr Henderson could and should have secured some work at a lower rate of pay very much sooner. The tribunal were unimpressed by the evidence given by Mr Henderson and surprised at his lack of success in finding work on the basis of what he presented to us (mainly orally)."