United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS L BONE (of Counsel) Instructed by: Messrs Graham Harvey Solicitors Northway House 1379 High Road Whetstone London N20 9LP


 


RECORDER LANGSTAFF QC:

1. This matter comes before us by way of preliminary hearing form an Employment Tribunal at Watford. In extended reasons which were promulgated on 10 October 2001, the Employment Tribunal found a breach of the implied term of trust and confidence.
2. The nature of that breach was identified by the Tribunal at paragraph 4 of its decision. There had been allegations against the employee. The breach was a failure to permit him to contradict those allegations. He was under notice at the time that that happened. Accordingly, he would have left employment anyway. He was paid for the full duration of his notice period. The issues that arise, in respect of which we think leave can properly be given, are all associated with the question of how the Tribunal then determined compensation.
3. It approached compensation by concluding that the only loss which it appeared the employee had suffered was an hypothetical one. The hypothesis involved future perspective employers seeking a reference. At paragraph 6 the Tribunal indicated that any reference given would, no doubt because it would have honestly to reflect the serious allegations made against the employee, probably or possibly be less favourable to the employee because he had not had a chance to persuade his employer that the allegations were in truth mistaken.
4. It is essentially to the quantification of loss that the notice of appeal is directed. Miss Bone, who appears before us, as she did before the Tribunal, has decided upon reflection not to pursue grounds 5.1, ground 5.2(a) and (g) of the notice of appeal. The other grounds in essence, query the way in which the Tribunal approached compensation. We consider that she is entitled to raise those points as formulated, not least because the employee in this case appears to have found a job within a fortnight of the termination of his contract of employment with the Appellants.
5. There is no evidence that he has in fact been disadvantaged in connection with the getting or retaining of employment or the level of remuneration in that employment by reason of the breach of the employer and indeed there is, it would appear, no clear material which suggests that any request for a reference was made other than from the firm, with whom, as it turns out, he did indeed get employment.
6. The Tribunal approached damages by analogy with Smith v. Manchester Corporation. That case, the principles of which are further explained in Moeliker v. Reyrolle, deals with a personal injury case in which the chances that an employee may cease his present employment and the chances that he may then be at a disadvantage on the open labour market in consequence of his injury are to be assessed, taking as a starting point, the present wage. It is arguable that there is no analysis by this Tribunal of the factors which one would expect to see in play if indeed Smith v. Manchester were an appropriate analogy. Moreover, it is unclear why a case which related to the award of general damages in respect of congenial employment, that is an award which is made as part of the lump sum compensation for pain, suffering and loss of immunity in a personal injury case, is appropriate to determining a compensatory award for potential loss of wages in consequence of a contractual breach.
7. We take the view, having heard Miss Bone that what is also comprehended by the grounds, although it is not proposed to alter the expression of them, is in any event the contention that to award the sum of £2000 even if, as a matter of principle, it were properly awardable in these circumstances, is manifestly excessive.
8. On those bases and with the understanding of the Notice of Appeal to which we have just referred, we give permission for this matter to proceed. The hearing will take, we think, no more than 2 hours. We consider it is category B, skeleton arguments no less than 14 days prior to the hearing, together with copies of any authorities to be relied upon. The Tribunal has had a letter from the Respondent which asks for 2 months within which he may put in a Respondent's notice if so advised. We see no reason why we should not have that indulgence and we therefore say that if he wishes to put a Respondents notice in, time is extended until 2 months from today, that is until 2 July for him to put in such a notice.