United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SIMON GORTON (of Counsel) Instructed by: Messrs Brabners Chaffe Street Solicitors 1 Dale Street Liverpool L2 2ET
For the Respondent	MR TONY ROSS (of Counsel) Instructed by: Messrs Rowley Ashworth Solicitors Suite 1B Josephs Well Hanover Walk Leeds LS3 1AB

SUMMARY

Unfair Dismissal

Liverpool Employment Tribunal made arithmetic, factual and legal errors in a decision registered 9½ months after the last oral hearing, with no explanation for the delay. Kwamin [2004] ICR 841 EAT applied. Allowed by consent to different Employment Tribunal for all issues of pension loss. Directions given for speedy Employment Tribunal re-hearing.


 


HIS HONOUR JUDGE MCMULLEN QC

1. This case is one which demonstrates an extraordinary procedural history in the Liverpool region. It is the second one today. Mr Gorton has been in them both. Sadly, he is not on the winning side in this one.
2. The approach which we will take is to allow an appeal by consent. The complexity in the case arises because the parties are not agreed as to the order which we should make for remission. The case will be remitted; that is not in dispute.
3. What happened was that on the 8 May 2003 the Tribunal in Liverpool, Chairman Mr S Christie met to consider the remedies it was to award to the Applicant, in respect of whom a finding had been made that he had been unfairly dismissed by the Respondent. The Respondent did not appeal that decision on liability. The Applicant was represented by an Officer of AEEU and the Respondent by Counsel, not Mr Gorton.
4. The Tribunal awarded the Applicant £39,083.63 by way of compensation. It would not be unfair to say that there is no reasoning in this decision. The standard of presentation of a judgment with Extended Reasons would not meet the test in the regime prior to 1 October 2004 and would certainly not meet it under the new more rigorous climate provided by those regulations. Fortunately the parties have taken a pragmatic approach to this. The Applicant's award of compensation included about £9,000 for matters which were not related to pension loss.
5. During the course of the appeal the Applicant's circumstances changed and so the expectations about the Applicant's mitigation will be looked at again. Having heard the evidence on 8 May 2003, he Tribunal met in Chambers on 28 July 2003. No explanation has been given for that delay. However, more significant is the delay until the reasons were registered on 26 February 2004. This is nine and half moths after the last oral hearing. It is well outside the three and half months following the judgment in the tests cases of Kwamin [2004] ICR 841 EAT. No explanation has been given for that. The principle is that a decision will not be set aside because of delay. Delay of three and half months or more is culpable unless excused, and is grounds for setting aside a decision if "delay plus" as it colloquially called emerges. In other words there are reasons for finding the Decision unsafe as revealed for example by inaccurate recording of facts.
6. In this case there are accepted to be both legal and factual errors. Upon a Notice of Appeal being drafted by Mr Gorton, an immediate response was obtained from solicitors representing the Applicant saying as follows:

"We concede the Appellant's appeal and accept that the Tribunal fell into error in relation to the calculation of the Applicant's pension loss".

One item is identified as an error. Judged as at that date 21 June 2004 all that would be required would be for an application to be made for the Decision to be set aside by consent in accordance with paragraph 15 of the Practice Direction which might involve attendance here but probably would not, that matter being decided by a judge.

7. Fortunately, today we have both Counsel before us; both of them agree there are errors of fact and law in respect of the Tribunal's approach to pension loss. There are no such errors identified in relation to other aspects of loss and Mr Gorton has indicated that he will advise his client that the undisputed sums due to the Applicant will be forthcoming within seven days. For we see no reason why an Appellant before us seeking justice should not observe the orders of the Employment Tribunal below with which it expresses no dissatisfaction.
8. We turn then to the basis of the remission. Section 35 of the Employment Tribunals Act 1996 determines our powers:

"35. Powers of Appeal Tribunal

(1) For the purposes of disposing of an appeal, the Appeal Tribunal may-

(a) exercise any of the powers of the body or officer from whom the appeal was brought, or

(b) remit the case to that body or officer.

(2) Any decision or award of the Appeal Tribunal on an appeal has the same effect, and may be enforced in the same manner, as a decision or award of the body or officer from whom the appeal was brought."

9. That has been interpreted in Askew v Victoria Sporting Club Ltd [1976] ICR 302 as giving the EAT a wholly unrestricted power so long as it acts judicially to remit a case for re-hearing see page 304 h per Philips P. That case was not cited through to the Court of Appeal when it determined Irvine v Prestcold Ltd [1981] IRLR 281 but Fox LJ, who gave the only judgment, indicated that the EAT had jurisdiction once an error was spotted to remit matters to the Employment Tribunal provided that the Employment Tribunal itself had power to make an order. It related to a recommendation and not a monetary award and was struck down.
10. The correct approach therefore is, first to identify whether there is an error which causes the appeal to succeed. There is by consent a number of errors. They relate to the approach to compensation in respect of pension. It is accepted by both Counsel that it would be appropriate on remission for new evidence to be taken to reflect the changed circumstances of the Applicant in relation to his mitigation. We have drawn attention to a judgment of the EAT in Orthet v Vince-Cain UKEAT/0801/03/2 12 August 2004 in which Mrs McArthur and I were sitting with Ms Switzer which may be relevant to the future progress of this case.
11. We consider it would be wrong for the Tribunal's hands to be tied when it approaches the issue of pension loss. In a sense, all pension loss is an assessment of a future loss. Mr Gorton has contended in arguments quite properly and persistently made to us that there should be a controlled remission which takes no account of findings made in respect of what are described as accrued losses. Mr Ross in an engaging response has indicated the consequence of that. The Tribunal and the parties would know that there is an error of fact in its approach to the compensation based upon accrued pension loss. It would be wrong for public funds and for the funds of these two parties to be expended based upon what is accepted to be an error of fact.
12. In our judgment the proper approach is to regard an error of law as having been found and to ask whether the Decision is unarguably right notwithstanding. It cannot be said that is the case. We are satisfied that a major contributor to the errors in this judgment is the passage of time, ostensibly culpable without an explanation. This is a case in which there is delay plus: the reference to shareholder schemes and the failure by the Tribunal to pay attention to the correct multiplier in the 2003 guidelines are both such errors. .
13. To put this case in perspective, the Applicant had the task of proving that he had been unfairly dismissed. He succeeded. He then has to prove his losses. The Tribunal has taken account of at least a dozens matters in assessing his compensation. One of those matters although a big part is pension. It would be wrong to hamper the Tribunal in its approach to that issue, hearing as it will new evidence in relation to mitigation. The whole issue of the calculation of losses relating to pension will therefore be remitted to a freshly constituted Tribunal. Although much of the Tribunal's decision is not subject of dispute, there is force in Mr Gorton's submission that his clients have lost faith both in the ability of this Tribunal to make a correct decision and make it quickly and this is now a clear-cut point which can be decided by reference to live evidence and submissions relating to actuarial calculations if necessary.
14. It has not been necessary for us to consider an application by Mr Ross for permission to introduce a cross appeal which was filed on 1 October 2004 since we did not call upon him having indicated our approach to what has been described as the section 35 power.
15. We would like to thank both Mr Gorton and Mr Ross for their succinct submissions. The appeal is allowed. [Directions given for remission].