United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL BARNETT (of Counsel) Instructed by: Mr R M Gibson Messrs Samuel Philips & Co Solicitors Gibb Chambers 52 Westgate Road Newcastle Upon Tyne NE1 5XU


 


MR COMMISSIONER HOWELL QC

1. In this case which is before us today for preliminary hearing Mrs Gillian Rachel Johnson seeks to have set aside as erroneous in law the award of compensation for unfair dismissal made to her by the Newcastle Employment Tribunal, contained in Extended Reasons sent to the parties on 4 July 2000 after a hearing which had taken place on 14 February 2000; it is a matter of some surprise that there was so long a gap between the date of the hearing and the Tribunal's decision and the promulgation of the Extended Reasons.
2. The proceedings before the Tribunal had been for unfair dismissal brought by Mrs Johnson against her employers, Scottish & Newcastle PLC with whom she had been employed for nearly five years as an assistant manager in a public house.
3. She had been dismissed because of excessive unauthorised use, for her own private purposes, of the company's telephone, and the Tribunal's decision was that the procedure adopted by the Respondents leading up to her dismissal - which was not a summary dismissal but an immediate dismissal with 4 weeks pay in lieu of notice - had been flawed because proper enquiries had not been made about the extent of private use of the telephone by other staff, or the knowledge of the staff generally as to how strict the Respondents' policy on private use of the telephones was.
4. However, the Tribunal's actual award of compensation was of only relatively trivial amounts, consisting of a basic award of £97.55 and a compensatory award of £53.18, because of the Tribunal's conclusion (or assumption) that a proper procedure would in any case have resulted in Mrs Johnson's dismissal, that she had been at fault by her own conduct in contributing to her own dismissal, and had failed to take adequate steps to mitigate her own loss.
5. The appeal is on the grounds that the Tribunal misdirected themselves in their approach to the reduction for the contributory factor, in conjunction with the reduction for the possibility of her being dismissed in any event, within a similar timescale, and the question of mitigation of loss.
6. Those grounds have been helpfully set out in a draft amended Notice of Appeal and in the Skeleton submissions of Mr Barnett, who has appeared before us on her behalf, and it is not necessary for us to do more for the purposes of the present hearing than to say that we accept that amended Notice of Appeal discloses arguable points of law which warrant a full hearing before the Employment Appeal Tribunal which we accordingly direct.
7. We consider the principal issues to be whether the Tribunal misdirected themselves in their approach to first, the question of contributory conduct on the part of the Applicant, and the reduction they imposed for that; second, the percentage reduction imposed by reference to Polkey v Dayton Services Ltd [1988] ICR 142; and third, the question of mitigation of the Applicant's loss as a result of losing her employment.
8. We accordingly grant the Appellant leave to amend her Notice of Appeal in terms of the draft which has been submitted to us, that to be formally lodged within 14 days of today. We direct a full hearing of the appeal before the Employment Appeal Tribunal to be set down in listing Category C, with a time estimate of half a day.
9. If, when the parties get to preparing for the hearing, they consider that further time is needed, then they should notify the Employment Appeal Tribunal office so that a longer time can be allocated.
10. We direct that Skeleton Arguments should be exchanged between the parties and lodged at the Employment Appeal Tribunal office not later than 14 days before the date fixed for the full hearing of the appeal. For the Reasons canvassed in the Skeleton Argument, we direct that the Chairman should be asked to produce her Notes of Evidence at the hearing, relating to first, the question of mitigation, including any evidence on which the Tribunal based its finding that the Appellant would have been dismissed in any event; and second, any evidence or submissions on the question of whether she should have been able to mitigate her loss to the extent found by the Tribunal in their assessment of compensation; that note to include any comment the Chairman wishes to make on what is said in paragraph 9 of the amended Notice of Appeal.