United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	MR N BOOTH Instructed by: Head of Legal Services London Borough of Tower Hamlets Mulberry Place 5 Clove Crescent London E14 2BG


 


MR JUSTICE NELSON

1. This is an appeal by Janice Carter against a decision of the Employment Tribunal at Tower Hamlets in respect of a decision made by them on 13 May 1999 in the Summary Reasons and 20 July in their Extended Reasons.
2. It is necessary very briefly to set out the background before considering the matter in detail and as a prelude to say that the Appellant has not attended here today but has requested that her appeal is dealt with in her absence and she relies upon the grounds that are set out in her Notice of Appeal.
3. The Appellant was found to have been unfairly dismissed from her employment by the Respondents. When she appeared at the first of two remedies hearings she said she wished to be reinstated or re-engaged. She had in fact been employed as a swimming instructor but when that job ceased to exist she was found other work as a class room helper but not paid at the lower rate as a class room helper but the higher rate of the job that she had been doing, which no longer existed, that of the swimming instructor.
4. At the first remedies hearing it was ordered by the Tribunal that she should be re-engaged by the London Borough of Tower Hamlets, to the position of primary helper or special needs assistant working 27½ hours or more a week and to be paid at the appropriate rate for the post including any extra payment she was entitled to because of her length of service. Re-engagement had to take place by 1 June 1999.
5. It is against that decision that the Appellant appeals and her appeal is based upon 2 grounds. Firstly, she says that the Tribunal failed to give reasons for its finding that it was not reasonably practicable to order the Respondent to continue to employ the Applicant to a lower graded post at the higher unqualified teachers' rate of pay and there was no evidence to support this finding. Secondly, the Tribunal erred in awarding the Applicant arrears of pay for the final 20 weeks prior to the hearing at a lower rate of the unqualified teachers' rate of pay which the Applicant had received until her dismissal, it being inherent in their decision that the Applicant was to be paid at the appropriate rate of pay for the post of primary helper or special needs assistant which was paid less than her employers had been voluntarily paying her namely the higher rate of swimming instructor even though she was doing a lower paid job.
6. What in fact transpired after the decision of the Tribunal on 20 July 1999 was a further hearing which has been described before us as the second remedies hearing a copy of which has been put before us. In this second remedies decision the Tribunal made in broad terms 2 findings:

(1) that it was not practicable for the Respondent to comply with the order for re-engagement and

(2) that because of the failure by the Appellant to mitigate her loss she was not entitled to any compensation after the end of November 1998 (and I quote from paragraphs 59 and 60 of that decision as follows):

"As any loss after this time (that is the end of November) is not attributable to the actions of the employer, it would not be just and equitable to make any further award. The Applicant must bear responsibility for her failure to look for other work, and subsequently for her unwillingness to accept suitable work that was offered to her.

In making a compensatory award, we must have regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer. In the period since her dismissal, that is 15 months, she has not applied for any work. Although today she gave as her ill health as one of the reasons for this, her evidence in April 1999 was that she was fit to do primary helper work. On 19 April 1999 she told us that although she has chronic asthma, that her health or her age then was the same as it had been when she was employed at the Harry Gosling School. She said that her asthma was stabilised by the use of inhalers and tablets and that she felt able to work 27½ hours per week. We find that the Applicant was not prevented by reason of her health from looking for, or finding work as a primary helper."

7. As a consequence the award that the Tribunal made was solely in respect of the period from September to the end of November 1998. This decision has not been appealed and as the Respondent's Counsel has submitted to us is now long past any time for appeal. The Respondent seeks to make a preliminary submission in relation to the Appellant's appeal and that is that in the light of the second remedy decision both points which are raised in the appeal that this Tribunal is dealing with are purely academic.
8. The order for re-engagement has fallen away in the light of the Tribunal's finding that the engagement was not practicable and the question of proper level of back pay from December 1998 onwards falls away in the light of the Tribunal's finding that she is entitled to no compensation from that date because of her failure to mitigate. Even if she succeeds Mr Booth submits this appeal cannot benefit her in any way at all.
9. In these circumstances the Employment Appeal Tribunal should decline to hear the Appeal against what is now a moot point. Mr Booth relies upon the case of Ainsbury v Millington reported at (1987) 1 WLR 379, a decision of the House of Lords where it was held that there would be no hearing on the merits in that particular appeal because it had always been a fundamental feature of the judicial system that the Courts decide disputes between the parties before them and do not pronounce on an abstract question of law where there is no dispute to be resolved.
10. In those circumstances as this now has become as a result of the second remedies hearing entirely academic it would be inappropriate for this Court to hear the matter any further. Before considering the further points made we indicate straight away that we are satisfied that this is a valid point. There is no possible benefit to the Appellant in pursuing this appeal any longer whatever as a matter of law it was decided she might have been entitled to in theory as to the level of compensation. The second remedies hearing of the Tribunal which has not been appealed has decided she is in fact entitled to no compensation in respect of the period which this appeal covers.
11. It is therefore in every true sense academic. We accede to the submission that it would inappropriate in such circumstances for this Tribunal to hear the matter. Whilst the appeal therefore fails upon that ground alone it is necessary to consider in view of the absence of the Appellant the matters that are put forward by her and which she sustains in relation to the first ground namely no reasons given for the order that the Respondent cease to continue to employ the Applicant to a lower graded post at the higher and qualified teachers' rate of pay and no evidence to support it..
12. Mr Booth has submitted that whilst the extended reasons may not be as full as they might be the summary reasons make it quite plain what the reasons are for the decision which the Tribunal came to. The decision of Meek requires that a Tribunal puts forward in its reasoning material which enables the parties before it to know why it has won or lost so that it will know that and be able to mount an appeal against the decision should it be appropriate to do so.
13. That test is more than adequately satisfied, Mr Booth submits, by the summary reasons. We are entirely satisfied that that is so reading from paragraph 9 of the Summary Reasons. What the Tribunal say is this:

"We must decide the terms of re-engagement and note that these should be; "so far as is reasonably practicable, as favourable as an Order for reinstatement". At the earlier hearing we found that the Applicant was being paid the appropriate rate for an unqualified teacher or swimming instructor, but that she was actually carrying out the work of a classroom helper. She was paid at the higher rate for almost two years while doing classroom helper duties and we do not feel that it is reasonably practicable to order the Respondents to continue to employ her to the lower graded post at the higher unqualified teacher's rate of pay."

That is the decision and that is the reason of the Tribunal and it quite clearly states why it is concluding, as it is, in making that decision. There was as Mr Booth has pointed out to this Tribunal no dispute at that remedies hearing as to the level that the Appellant was in fact being paid. That evidence was clearly before the Tribunal and they were quite entitled to come to the conclusion that it was not reasonable for her to continue to be paid at that higher rate whilst doing the lower graded post any longer.

14. We are satisfied that that point is validly made. The reasons are adequately given so the first ground fails on the merits in any event. In relation to the second ground of appeal namely that the Tribunal erred in awarding arrears of pay for the final 20 weeks at a lower rate than the unqualified teachers' rate of pay which she had received until her dismissal Mr Booth submits that whilst at first blush the case of Electronic Data Processing v Wright [1986] ICR 76 is applicable, it is in fact readily distinguishable from the present case. In Wright it was held that the Applicant was entitled to back pay at the previous rate until the order of re-engagement and it was done so because in that particular case the Applicant was still in the same job at the time of dismissal. Here, Mr Booth submits, the Appellant was in fact already in practice working in the alternative job at the time of dismissal. It is one thing to say that an employee is entitled to carry on in her old job at the old rate of pay until the new job is found, it is quite another to say that where another job has been found and the real unfairness is dismissing the employee rather than allowing her to carry on doing it the Respondent should be bound for a considerable period after her actual dismissal to pay her on the basis of the anomalous previous higher rate.
15. Again we think that is valid distinction. It is a point validly made and on the merits this ground of appeal would fail in any event. However, we make it plain that we are quite satisfied that this appeal is in its totality in any event entirely academic.
16. Mr Booth has in writing by those instructing him applied for costs. The application was made in a letter of 15 June 2001 to Janice Carter and by letter of 18 June 2001 Miss Carter supplied a copy of that letter and indeed another letter from the Tower Hamlets Legal Services asking whether she would confirm that she intended to proceed with the claim indicating thereby that Miss Carter knew that an application for costs was being made against her.
17. In her letter of 18 June sets out that she has been made ill by the negligence of Tower Hamlets in 1996 and has been ill since, is on incapacity benefit and has been on it since Tower Hamlets made her redundant. She says she is pursuing a personal injury claim against Tower Hamlets for ill health and negligence since 1997 and that the case comes up for trial on 10 September 2001. She asked that that letter and the contents of it and the accompanying letters in relation to the hearing and the application for costs be put before us.
18. We, having considered the matter as a whole are quite satisfied that this was a solely academic hearing, was made in detail and brought home to Miss Carter in the letter of 15 June 2001. She nevertheless continued to pursue the matter as is clear from the letter both of 18 June and indeed in other documents before this Tribunal with the specific request that the matter be continued in her absence.
19. In those circumstances, where it was plain and obvious to anyone that she was not going to get any benefit whatsoever from the outcome, however successful in respect of this hearing we think it appropriate that costs are awarded against her and our decision is that she be ordered to pay costs of £100. Both grounds of appeal are dismissed.