United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANTS NEITHER PRESENT NOR REPRESENTED
For the Respondent	MR T J PULLEN (Of Counsel) Instructed by: UNISON Employment Rights Unit 1 Mabledon Place London WC1H 9AJ


 


JUDGE BIRTLES

1. This is an appeal by Wolverhampton Volunteer Services Bureau from the decision of an Employment Tribunal sitting at Birmingham on 31 January 2002. The unanimous decision of the Tribunal was that Mr Clarkson, the Respondent here, was unfairly dismissed and that the Appellant here pay a compensatory award of £8,653.33. There is also a cross appeal by Mr Clarkson against the finding by the Employment Tribunal that he had caused or contributed to his dismissal by one third.
2. It is not necessary to go into the facts in any great detail. Suffice it to say that there is a very unfortunate history to this case. This morning the Appellants has not appeared. The history of the way this appeal has been conducted starts with the hearing before the Employment Tribunal on 31 January 2002. There was a Notice of Appeal by Wolverhampton Volunteer Bureau Services to this Tribunal and it came before a different division of the Employment Appeal Tribunal on 4 September 2002 for a Preliminary Hearing before his Honour Judge Prophet, Lord Davies of Coity and Mrs J M Matthias.
3. At that point it is clear that there were only two grounds of appeal. First, that there was no redundancy situation. Second, that the Tribunal had miscalculated the compensation. However, at the hearing before Judge Prophet and his colleagues, Mr Cove, appearing for the Appellant, argued that there had been serious failures of procedure before the Employment Tribunal and it is quite clear reading the short judgement of Judge Prophet, (pages 40 and 41 of the appeal bundle) that that was the way in which the Preliminary Hearing was conducted by Mr Cove.
4. The Employment Tribunal having heard Mr Cove who had represented the Appellant at the Employment Tribunal granted permission for the case to go through to a full hearing on the original grounds of appeal and also in respect of a new ground of appeal which was in effect bias or misconduct by the Employment Tribunal. The Appellant was ordered to file an amended notice of appeal which it did. This, of course was relevant to the new ground of appeal only.
5. In addition the Employment Appeal Tribunal ordered that the Appellant file and serve an Affidavit pursuant to paragraph 9 of the Employment Appeal Tribunal Practice Direction 2002 in support of the allegations of bias in the amended Notice of Appeal. That was not done. That order was made by the Registrar on 10 January 2003. It not having being done the Registrar made a further order on 24 February 2003 that unless the Affidavit was received within 14 days of the sealed date of that order i.e. 24 February 2003 the Appellant would be debarred from raising allegations of bias at the full hearing at the appeal. No such Affidavit was filed and therefore of course the Appellant became automatically debarred from pursuing the misconduct part of the appeal.
6. Parallel with that Mr Cove had written to the Employment Appeal Tribunal on 19 February 2003 in the following terms:

"Thank you for letter of 6^th February 2003. I apologise for the delay in replying to this. The reason for such delay is that I have been attempting to ascertain the extent to which the former Directors who were present at the tribunal are prepared to sign the Affidavit. This apparently is not possible. You may treat this letter therefore as both my apology and formal notice that I am not pursuing misconduct of the hearing as a ground for appeal."

So that would appear to be a withdrawal. It matters not whether the misconduct part of the amended Notice of Appeal was withdrawn or dismissed.

7. We have to say that we find it quite extraordinary that Mr Cove having made these allegations of misconduct against the Employment Tribunal was not himself prepared to support them by a sworn Affidavit to that effect given that he had been present throughout the hearing of the application before the Employment Tribunal. Who could be better placed to give evidence as to the misconduct of the Tribunal than Mr Cove?
8. The appeal went forward in the normal way and the parties were notified of the hearing for today. Despite having appeared below and despite the fact that he had the conduct of the case Mr Cove failed to file a skeleton argument at all thereby putting himself in breach of paragraph 7(ix) of the Employment Tribunal Practice Direction 2002. We have had no skeleton argument at all from the Appellant.
9. On Monday of this week, 12 May Mr Cove sent a letter to the Registrar of the Employment Appeal Tribunal in the following terms:

"We act on this matter on behalf of Appellants, Wolverhampton Voluntary Bureau Services Ltd. We are aware that the appeal is due to be held on Wednesday.

We refer to earlier correspondence with us. We have already indicated that we regret very much the delay in lodging documents with you. This was caused partially by the absence of Mr Cove due to a combination of extreme work pressures and ill health and partially by the need to deal with certain of the issues arising in this matter.

We should be grateful if you would note the following:-

1) The skeleton argument required in this matter has not yet been completed. We apologise for this. We will attempt to complete this later this afternoon. In any event it will be with you sometime tomorrow morning (In paremsis I add it has not been received)

2) Mr Cove who is the only person available to deal with this matter will not be attending at the hearing on Wednesday. He is due to see a doctor on that date.

3) We apologise for any inconvenience caused to the tribunal. We should be grateful if you would treat this letter as our formal request for the hearing to be adjourned. If, as well maybe the case, you feel that this is not possible, we should further be grateful if you would note we should not be attending upon the hearing.

We would not wish the Tribunal to regard us as discourteous but without Mr Cove's availability it is not possible to attend."

The letter is signed by Mr Cove.

10. The Registrar having received the letter on 13 May, yesterday, wrote back to Mr Cove informing him that her decision was that the matter should remain in the list for hearing today. That, of course, was a perfectly proper and correct decision. We note that the Appellant is an organisation with some funds and some staff. It must have been apparent to Mr Cove for some time before today that he would be unable to conduct the appeal. No explanation has been given as to why a solicitor or some other representative could not have attended and conducted the appeal today. This appeal is relatively straight forward one. Putting all of these matters together we consider that the Appellant has not conducted this case in the way we would have expected and in the absence of the Appellant this morning and against that background we have no hesitation whatsoever refusing the application for an adjournment and in dismissing the appeal for non prosecution.
11. I turn to the cross appeal. The Employment Tribunal decided that the reason put forward by the employer for dismissing Mr Clarkson, that is redundancy, was not the reason or indeed the principal reason for his dismissal. In effect they decided that there was no redundancy situation at all in the reorganisation carried out by the employer. It followed that therefore the dismissal was unfair. That was subject to the appeal which we have dismissed.
12. The Employment Tribunal then went on to consider the question of compensation and awarded Mr Clarkson two thirds of the amount which it calculated was due to him. It reduced his compensation by one third because it did decide that Mr Clarkson had to some extent caused or contributed to his dismissal. The conclusions of the Employment Tribunal are set out in paragraphs 19 and 23 of its decision. And it may be helpful if I read them:

"19 We do find though that Mr Clarkson did not help his cause and that it would be appropriate to reduce his award by one third because we are satisfied that the dismissal was, to some extent, caused or contributed to by the action of the Applicant. We consider that a one third reduction is just and equitable.

23 We are satisfied that in this case the Applicant has contributed to his own dismissal and we therefore are reducing the award by one third which we considered to be just and equitable because he did not apply for the alternative position in this case. Because of the above the Recoupment Regulations will apply to this decision."

It is quite clear reading those two paragraphs that the Employment Tribunal had in mind Section 123(6) of the Employment Rights Act 1996. This reads as follows:

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

13. In his helpful skeleton argument Mr Pullen appearing for Mr Clarkson has referred to the decision of Nelson v BBC (No 2) [1980] ICR 110 and he has very helpfully analysed that decision for us. As is clear from it there are 3 findings which the Tribunal must make when making a reduction under Section 123(6) of the 1996 Act. First, there has to be conduct of Mr Clarkson in connection with his unfair dismissal which was culpable of being blameworthy. Second, that the unfair dismissal was caused or contributed to by that conduct. Third, that it was just and equitable having regard to the first two factors to reduce the compensatory award. As Mr Pullen points out there is no express finding by the Employment Tribunal in relation to the first point beyond a statement that:

"Mr Clarkson did not help his cause."

14. The Tribunal did not identify the reason for the dismissal or the circumstances surrounding the dismissal and did not explain its reasoning as to how it reached its decision that Mr Clarkson had by not helping his cause in some way caused or contributed to his dismissal. In our view this is an error of law. Both the Nelson case and the recent decision of the Court of Appeal in Tran v Greenwich Vietnam Community [2002] IRLR 735 make it clear that it is incumbent upon an Employment Tribunal to explain its reasoning but so that both the parties to the case can understand its reasoning and that any appellate court can also understand its reasoning. See in particular the comments by Seddley LJ at paragraph 17 and by Lady Justice Arden at paragraphs 39-41. We cannot understand the reasoning of the Employment Tribunal in this case. It is quite clear that from the papers before us that Mr Clarkson had had difficulties with his employer which appear on the face of the papers to be largely generated by the employer if not entirely so. The arrangement whereby all existing members of staff were to be made 'redundant' and invited to reapply for new posts was in our view a device to get rid of Mr Clarkson.
15. Mr Clarkson applied for what was in effect the equivalent of his old post and did not get it. The Tribunal specifically found that there was no redundancy situation because the new posts were the same as the old posts. In those circumstances we cannot see how in any way at all Mr Clarkson caused or contributed to his dismissal. The cause of the dismissal was the action of the employer erecting a bogus redundancy situation and that was an action taken entirely by them and in no way caused or contributed to by Mr Clarkson. It follows there was an error of law on the part of the Employment Tribunal and to that extent we allow the cross appeal and substitute a decision that Mr Clarkson is entitled to be compensated by the Appellant on a one hundred per cent basis and we therefore order that the Appellant pay him the further sum of £4,326.67 in addition to the sum already ordered to be paid to him by the Employment Tribunal.