United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P O'BRIEN (of Counsel) 30 Cravells Road Harpenden Herts AL5 1BD


 


MR JUSTICE BURTON

1. This is the preliminary hearing of an appeal brought by Mr English against Martlet Estate Agents in respect of the unanimous Decision of the Employment Tribunal sitting at Brighton on 21 April and 25 June 2001 that, while he was unfairly dismissed, the Respondent employer should only pay him the basic award and that his compensatory award should be nil.
2. The Respondents below admitted, as they put it, that the dismissal was unfair through procedural defect. The Employment Tribunal did not accept that and concluded that the dismissal was totally unfair, because there was an underlying reason for the dismissal of which the Respondent employers took advantage.
3. The brief facts are that it was apparent from the history before the Tribunal that, as a result of failures of performance by the Appellant, the Respondent estate agents were going to dismiss, and indeed, there had been a number of previous discussions and warnings, although no formal disciplinary warnings, which the Tribunal concluded were inevitably leading up to a dismissal, albeit that the Respondents did not lay the proper groundwork.
4. The actual circumstances of the dismissal are set out in the Decision, and involved the circumstance in which the Appellant dealt with a County Court hearing, it being apparent that he was only by then being retained in employment for the purposes of finishing off that hearing. As the Tribunal concluded, the Appellant knew he was to lose his job, in any event, once the Court case was completed.
5. The conclusions by the Tribunal on compensation were twofold: first, they set out in paragraph 4(j) of the Decision a number of matters from which they conclude that the Appellant contributed to his dismissal. They number, I think, some six matters: his criticism of the Respondents; the fact that the Respondents had to remind him of his duties; the fact that the Appellant failed to put forward a business plan, which he should have put forward; the fact that the Respondents had to remind him that he was not using appropriate documentation or following their instructions; and that he failed, on a number of occasions, to comply with those instructions and that he had an unwillingness or inability to appreciate the priority to be given to the Court case.
6. Those matters, in totality, led them to reduce the loss by 25% in respect of his contributory conduct. The loss, as calculated by the Tribunal, based upon a document put forward on his behalf, was set out in paragraph 6, at £16,701.20. That was subject to the then statutory cap of £12,000 and, consequently, the reduction of 25% in the loss still left the award as slightly over the statutory cap, but they then went on to consider Devis -v- Atkins and the provisions of section 123(1) of the Act, and they deal with this question in paragraph 7 of their Decision which reads as follows:

"7. We then went on to consider whether there were any grounds for reducing the compensatory award under the provisions of Section 123 (1). Ms Nicholls [who was then representing the Appellant] drew our attention to the decision of the House of Lords in the case of W Devis & sons Ltd -v- Atkins [1977] ICR 662."

And the Chairman continues:

"It is clear from case law that a Tribunal must consider whether there should be a reduction in the compensatory award under Section 123 (1) if information about actions of the applicant which took place before dismissal come to the knowledge of the respondents and/or the Tribunal after a dismissal. We consider that such a situation has arisen in this case."

7. The circumstances to which they referred were these: there was a Court hearing coming up on 30 April. In circumstances inexplicable to us the Appellant concluded that he did not have money to travel to Court. He apparently informed the Respondents that there was only £4.40 in the petty cash box in the Selsey office, on 26 April, and he apparently gave evidence that he had been unable to obtain either a bank account or credit card, and relied entirely on cash income. In those circumstances, he said that he did not have the wherewithal to travel to the County Court from Selsey to Croydon. In those circumstances, he had to seek an adjournment and the Respondents knew that he was going to seek an adjournment; consequently, to that extent, he had their authority. What he sent to the Croydon County Court was, as he admitted before the Tribunal, totally untrue. The facts that he sent to the Court are set out in paragraph 4(h) of the Decision:

"I was planning to attend the Court tomorrow for the plaintiff, but due to a family bereavement, I am regretfully unable to. I wish to request that the case be adjourned to another date and to make my apologies, and also to the defendant."

The Tribunal continued in that paragraph:

"The letter was signed by the applicant. The information set out in that letter was clearly wrong and there had been no family bereavement. The applicant accepted during the course of the evidence that the use of the word "bereavement" was deliberate and intended to induce the Court to adjourn the hearing. The applicant also accepted that any other words might well not have had the desired effect of the Court."

8. There was thus a clear lie told, on the face of it, on behalf of his employers, although he accepted that they had not known of or authorised the lie, and effectively achieved, or intended to achieve, what could be categorised as a perversion of the course of Justice. The Tribunal addressed that and said as follows in paragraph 7:

"We take the view that the fax contained a deliberate misrepresentation by the applicant to the Court. The applicant in his evidence sought to argue that the word "bereavement" covered situations other than a death. We do not accept that and we do not believe that the applicant believed that. The applicant clearly used the word "bereavement" because he considered that any other word would not secure the adjournment which he was seeking."

And then the Tribunal referred to statutory provisions governing the business of the Respondent company and then continue:

"We take the view that the applicant's fax to the Court could have caused serious problems for the respondent company and perhaps even for the applicant himself had the deception of the Court been detected and pursued further. We take the view that the applicant as a professionally qualified person working in such an environment should have been well aware of that and we therefore take the view that it would be just and equitable to reduce the compensatory award under Section 123(1) as a consequence of that action by the applicant. As we have said, we consider that the applicant was treated unfairly and that there is much in the actions of the respondents to be criticised. Although we have considerable sympathy for the applicant, we cannot see, in the light of our findings and conclusions, that we have any alternative but to say that it would be just and equitable to reduce the compensatory award to nil."

And that is what they did.

9. The submissions of Mr O'Brien who has appeared, very persuasively, on behalf of the Appellant, crystallised his case into four heads of argument of which the first, to which we shall return, was clearly the most central of them, the first being that the Tribunal were perverse in reducing the compensation to nil, erred in law and/or gave insufficient reasons.
10. The second submission, and this was based upon an application to amend the existing grounds of appeal to include such an argument, was that the Tribunal inaccurately quantified the totality of the Appellant's loss by excluding a claim for future loss, and thus did not appreciate what loss it was which was then capped at £12,000 and then reduced to nil.
11. The third submission he made was along similar lines; he criticised the reduction of 25% in respect of the behaviour, to which we have referred, when the Tribunal themselves did not regard that conduct according to their own Decision as significant, and once again, submitted that if there had not been that reduction, the head of loss which was then to be capped, and consequently reduced to nil, would again have been larger.
12. The fourth ground on which he relied was that the conduct which they relied on was conduct which they concluded was particularly significant because it was in breach of statutory provisions, presumably a reference to the Estate Agents Act, which were not before the Court. Consequently, they erred in their appreciation of the nature of the conduct.
13. We will deal with the second, third and fourth grounds first. The second and third run together, but we shall deal with them separately, so far as the background is concerned. The complaint that the Tribunal erred in failing to take into account future loss is, it seems to us, completely unsustainable. Mr O'Brien, very frankly, has produced a document which was handed into the Court by those then representing the Appellant which quantifies his loss and describes it; and included in the claim for compensation, there is no claim for future loss but, more significantly, this is not simply an overlooked error because the heading "Compensatory award" continues with the information "(out of work until October 2000)" and then the total is set out, all of it described as past loss.
14. In those circumstances there was plainly a representation to the effect of no continuing loss. Mr O'Brien is not able to tell us whether that was confirmed in evidence by the Appellant, although he informs us that in fact, the Appellant at that stage of the hearing in April 1991, was employed at Tescos; but whether that was made clear or not, the position was made quite clear, namely that there was no claim for future loss because the Appellant had got back into employment, and was not seeking to assert that there was any continuing loss. Mr O'Brien submits that there was some duty on the Tribunal to explore. Clearly there might be such a duty if there was simply no mention of future loss, but it seems to us that, where the case was made absolutely clear, namely that the Appellant was only out of work until October 2000, and was then back in work, and was not seeking any future loss, any duty of the Tribunal was adequately fulfilled by their accepting that information.
15. The other context relates to the 25% reduction. We have no doubt at all that in respect of the conduct which we have set out by reference to paragraph 9(j) of the Decision, however described, the Tribunal were entitled to reduce the loss by 25% to reflect their findings. In those circumstances, we do not consider it to be arguable that there was an error in the Tribunal in their starting point of something over £12,000 before it was reduced to nil.
16. However, even were we to be of a different view in relation to either of those two submissions, it appears to us not to be material how large the loss was. The issue is whether, in the light of the evidence before them, and their conclusions about this, this Tribunal was entitled to reduce whatever the loss was to nil. Clearly the larger the loss, the more sympathy would be shown, as the Tribunal did show, towards the Appellant, but it does not appear to us that it was necessary for the Tribunal to have an exact figure in mind, before concluding that it was proper for them, and necessary and proper, as they found it, to reduce the claim to nil.
17. We turn to the fourth ground, namely the suggestion that there was either an erroneous consideration, or at any rate an unfair consideration, because no specific notice had been given to the Appellant of the Estate Agents Act, or some other statutory provisions. It appears to us that, whether or not the Tribunal had in mind the issue of statutory provisions, of which of course, as a chartered surveyor, the Appellant would have been fully familiar if they are relevant, it plainly also had in mind, and, perhaps, had rather in mind, the simple and straightforward view that this was a lie to the Court, which could have had serious problems for the Respondent company, because it was, on the face of it, a representation made by someone for whom the company would be vicariously liable, intended to have consequences in relation to a case at the County Court, to which it was party; and it does not appear to us that any superadded consideration of the statutory provisions, if there were any such, would have affected the view, one way or the other, of that conduct.
18. We turn, finally, therefore, to what appears to us to be the nub and the only point on which Mr O'Brien really was able to concentrate: namely his submission that it was perverse etc to reduce the loss to nil. The Tribunal has clearly set out its reasons, in our judgment, in paragraph 7: they took the view that this misconduct, consisting as it did of dishonesty, and dishonesty putting the employer in jeopardy, was such serious misconduct as to fall within Devis -v- Atkins to which they were referred, entitling them, indeed, as they conceived it, necessitating them on the facts, to reduce the award to nil.
19. Plainly there could have been other outcomes - they could have reduced the loss by 75% or 90%, or 95% - but plainly this was very serious and important misconduct by a professional man, and a lie to the Court, and it does not appear to us that it would have been reasonable for the Tribunal to have reduced it by anything less than that. Now, given that the band of reasonable responses of this Tribunal would have started, in our view, at a reduction of 75% at the lowest, it was not a decision to which no reasonable Tribunal could have come, having been directed to Devis -v- Atkins, to conclude that, on the facts of this case, the misconduct by the Appellant was such as to justify a reduction to nil. It is quite plain that they had set that before the Appellant, they had said so and that is clear from the Decision. They knew that what they were doing would have unfortunate and sad consequences for the Appellant, but this was not, as Mr O'Brien put to us, conduct simply on his own behalf; it was conduct, purportedly, on his employer's behalf, and it was serious misconduct.
20. They did not go on to say, in terms, that it is misconduct for which the employers would have been entitled to have dismissed the Appellant, when they discovered it, summarily; but plainly they weighed the conduct as of that nature, and having weighed it, they concluded that, within the discretion given them by Devis -v- Atkins, this was an appropriate case for a nil award. We see no way in which we can interfere with that conclusion, and consequently, the appeal is dismissed.