United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Peter Fitch (Husband) on behalf of the Appellant


 


MR RECORDER BURKE QC

1. Mrs Fitch was employed by the Respondents, Durlston Court School Trust Ltd, as a teacher at the Respondents' school in Barton on Sea in Hampshire, from 1988 until her employment came to an end on 10 April 1999. She complained that she had been unfairly dismissed, the dismissal being a constructive dismissal. The Respondents denied dismissal and asserted that Mrs Fitch had resigned.
2. The Employment Tribunal at Southampton, chaired by Mr Trickey, in a decision promulgated in December 1999 decided that Mrs Fitch had been constructively dismissed and that her dismissal had been unfair.
3. In its conclusion the Tribunal was severely critical of the Respondents saying, among other things, that their conduct in relation to the disciplinary issue was incompetent in the extreme. They were there referring to allegations of misconduct which had been made against Mrs Fitch, and indeed determined against Mrs Fitch some time shortly before the employment came to an end. The Tribunal went on to say that there had been a glaring violation of the provisions of the contract of employment and a complete denial of natural justice to Mrs Fitch who was in no position to present her case.
4. The Tribunal dismissed Mrs Fitch's breach of contract claim, in respect of the absence of any notice period; but on a review, it revised its decision and found that a breach of contract in respect of the notice period was made out. The Tribunal was clearly wrong in its first view of that matter and clearly right in its corrected view.
5. On 17 January of last year, the Tribunal proceeded to assess compensation. It awarded Mrs Fitch a basic award of £3,080, a compensatory award of £5,951.65 and an award for damages for breach of contract for failure to pay salary in the notice period of £5,751.55 which it set off against the compensatory award. That decision was promulgated on 24 January with Summary Reasons.
6. On 5 February, Mrs Fitch applied for a review of that decision which was refused by the same Chairman, sitting alone, on 6 March. Pursuant to Mrs Fitch's request the Tribunal then produced Extended Reasons for its remedies decision which were promulgated on 27 June. This is the preliminary hearing of Mrs Fitch's appeals, firstly against the decision on the assessment of compensation and secondly against the decision to reject her application for a review.
7. Mr Fitch, who has been extremely helpful to this Appeal Tribunal this morning, has helpfully accepted that what he was seeking by review was, in effect, to achieve what should have been sought by way of appeal to this Tribunal. So far as we can see, there were no grounds for a review of the Tribunal's decision, as opposed to grounds for an appeal against its decision; and we do not give leave for the appeal against the rejection of the application for a review to go forward. That appeal is dismissed.
8. Mrs Fitch is not damaged thereby because, as Mr Fitch accepts, what she wants to achieve, and what she wants to put forward by way of attack upon the Tribunal's compensation decision can be achieved, if she succeeds of course, by the medium of an appeal against that compensation decision. So far as that appeal is concerned, Mr Fitch has put before us, as he did in the Notice of Appeal together with the Skeleton Argument and addenda which we have read, submissions under, in effect, four heads.
9. Firstly, he submits on behalf of Mrs Fitch that the Tribunal, in coming to its decision that Mrs Fitch had unreasonably failed to mitigate her loss by seeking replacement employment and that if she had acted reasonably, she would have obtained employment by the end of August 1999 or 1 September 1999, in effect by the expiry of her notice period, acted perversely or, alternatively, failed to take into account properly or at all the difficulties which, Mr Fitch submits, inevitably lay in her way in obtaining employment, as a teacher, that being all she had done for many many years, and that being her profession, because, when or if she had sought any employment, she would have had to disclose what had transpired to bring her employment to an end; and that would have meant that obtaining employment could not have been a realistic possibility.
10. Further, says Mr Fitch, it would have been wholly humiliating for her to have to go to another employer and explain what had passed between her and the Respondents, at a time when, until the Tribunal concluded that she had been constructively dismissed, she had not cleared her name in respect of the allegations made against her by her employers and the employers had provided no retraction of the allegations of misconduct which they had made, and indeed, which they had determined against her.
11. There is no doubt at all that the Tribunal made explicit findings of fact on the mitigation issue, and that, of course, an appeal against a finding of fact can only succeed in very restricted circumstances. Nevertheless, we have come to the conclusion that it is arguable that, in reaching the decision that it did on mitigation, and on the effect of what the Tribunal regarded as an unreasonable failure to mitigate her loss, the Tribunal either acted perversely or failed to take into account all material matters. We are not suggesting for one moment that Mrs Fitch will or will not succeed on those arguments at the full hearing of this appeal, but it is our view that the case is sufficiently arguable, unusually perhaps, for a full hearing to be needed.
12. We pass then to the second general ground on which the compensation decision is attacked. Mr Fitch submits that the Tribunal should not have set off the damages for breach of contract i.e. the loss of earnings during the notice period, against the compensation for unfair dismissal. Whereas, it perhaps makes no difference to him if the Tribunal was correct to limit compensation to a period ending at 31 August on the basis of a failure properly to mitigate, if that finding is set aside, then, says Mr Fitch, it will be important because of the potential effects of the cap on compensation for unfair dismissal, that the Tribunal correctly distinguishes between damages for breach of contract and compensation for unfair dismissal.
13. It may be that if the mitigation argument succeeds, that the correct way forward will be for this case to be remitted to the Tribunal for the consideration of compensation to be started all over again. But we think that there is an arguable point here which the Appeal Tribunal, at a full hearing, may wish to resolve, and that Mr Fitch should have the opportunity to develop the point on his wife's behalf at a full hearing.
14. The third argument put forward by Mr Fitch is that the Tribunal should have approached the calculation in three stages and failed to do so. The three stages, he submits, are: firstly, to decide on what were the proper sums for compensation for past losses and future losses. Secondly, to consider whether those losses were attributable to the unfair dismissal, and thirdly, then to consider the question of mitigation.
15. However Mr Fitch accepts that, if he succeeds on the mitigation arguments, this third submission will make no difference to the approach that will necessarily be taken by whatever Tribunal comes to consider what appropriate compensation ought to be, and that, if he fails, this submission makes no difference to the outcome in any event, because the Tribunal have decided what compensation there should be up to the date to which, having regard to their decision on mitigation, they regarded compensation as payable. Thus we conclude that there is no arguable third ground for a full hearing of this appeal; and Mr Fitch, in effect accepted that that was so.
16. The fourth ground relates to the rates of pay used by the Tribunal in its calculation of its award. In brief, what had happened was that, for the year 1998 to 1999, Mrs Fitch and the Respondents had agreed that she would work part-time during the Christmas term, but full-time during the following two terms, but that instead of being paid 50% of her salary for the Christmas term and receiving a full-time salary for the subsequent two terms, she would receive the same salary for twelve months, spread across the whole of the school year. That meant that she would have received more in respect of her part-time term than had she been, wholly, a part-time teacher; but she would have recovered less (it was calculated, by a factor of one sixth or 17% in each month in which she was working full time) than would have been her salary had she worked full-time for the whole of the year.
17. Mr Fitch submits that, in that situation, compensation should have been assessed on the basis of her full-time salary, for the months for which compensation was appropriate up to the end of August (on the Tribunal's findings in respect of mitigation) and not on the reduced salary which the Tribunal actually used. However, it is clear to us, and Mr Fitch has accepted, that if Mrs Fitch had not been dismissed, what she would have been paid over the period from her dismissal to 31 August 1999 would have been the sum actually used by the Tribunal. That was the contractual sum to which she was entitled, as a result of the arrangement which we have described; and we see no basis on which it can sensibly be argued that the Tribunal could or should have used any other sum.
18. That being so, that ground of appeal is dismissed; but this appeal will go forward to a full hearing on the first two grounds which we have identified. We think that this appeal ought to go into the Employment Appeal Tribunal's Category C; it has nothing special to it. Although it is very special to Mr and Mrs Fitch, it does not have any particular difficulties and we are going to order it to go into Category C. We think it should be able to be argued in half a day.
19. The Notice of Appeal as it stands at the moment on the one hand only appears, if one ignores the addenda in the Skeleton Argument, to raise the mitigation issue. Mrs Fitch might like to consider putting the Notice of Appeal into an appropriate form so that it sets out the two grounds upon which we have allowed her to proceed.