United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT
For the Respondent	NO APPEARANCE OF REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


HIS HONOUR JUDGE WILKIE QC

1. This is a Full Hearing of an appeal by Quartz Eclipse Ltd against the decision on compensation of the Employment Tribunal held at Shrewsbury on 28 April of last year which was sent to the parties on 14 May of last year. The matter came before a different panel of the Employment Appeal Tribunal for a preliminary hearing on 27 May last and it is clear that the reason that the case was sent forward for a full hearing was a concern which at that time was clear from the documents that the panel of the Employment Tribunal which had heard the substantive case on 14 January was a different panel from that which had heard the compensation hearing on 28 April. The record shows on the 14 January that the lay members of the Tribunal were Mr K J Butchart and Mr M Hitchings, whereas the panel on 28 April comprised as the lay members Mr L Holbrook and Ms A Sinclair. The EAT on the preliminary hearing felt that this may be a matter which would give rise to an arguable appeal, allowed the appeal to go forward and gave a direction that the Chairman of the Employment Tribunal, Mr Williams, be invited to advise the Employment Appeal Tribunal as to why there was a change in the composition of the Employment Tribunal when it convened for the second remedy hearing.
2. That direction has been complied with and it is now clear, from a letter dated 6 October from the Regional Secretary of the Tribunals that the Chairman Mr Williams has stated that the members who heard this case on both 14 January and 28 April 2003 were Mr L Holbrook and Ms A Sinclair.
3. A Certificate of correction has now been issued and the decision dated 14 January has been amended. A copy of the amended decision was enclosed with that letter and the names of the lay members at the hearing on 14 January 2003 have now been corrected so as to read Mr L Holbrook and Ms A Sinclair. That being so there is, therefore, no longer any potential argument as a matter of law that the substantive hearing was heard by a differently constituted panel from the compensation hearing.
4. One of the oddities about this case, however, was that the substantive hearing, as a result of which there was a finding of unfair dismissal, was one where the Applicant Mr Dunseith did not attend. Not withstanding that absence the hearing took place and, as is sometimes the case, the Tribunal concluded that the application succeeded. The application succeeded on the footing that, although the Respondent had been pursuing perfectly properly a procedure designed to address alleged want of capability by the Applicant and had reached a stage at the end of which there was the possibility that a final warning would have been issued to the Applicant if his performance did not did not improve, the Respondents acted unfairly by losing patience with the Applicant and transforming the process from one of capability into one of gross misconduct. They dismissed him at a time before that period of supervision had expired and before any question of issuing him with a final warning had been considered.
5. The Tribunal concluded that this was unfair. That was a conclusion which did not attract any appeal by Quartz Eclipse Ltd. The position on 28 April, however, was quite different in the sense that the Applicant attended on that date and gave evidence as to what his employment position was following his unfair dismissal.
6. The Tribunal, in its extended reasons made findings of fact as to what had happened to the Applicant after the 20 February when he had been unfairly dismissed. They accepted his evidence that he had by, 1 July, secured employment at remuneration which, viewed as a whole, put him in just about the same position as he was in before.
7. Therefore the period for which he sustained loss was from 20 February until 30 June, a period of four months and a week or so. Having made that primary finding of fact the Tribunal then considered, as it was perfectly right they should, what might have happened had the procedure addressing want of capability proceeded through to its conclusion. They came to the view that the Applicant would have been fairly dismissed within a relatively short space of time and the time that they fixed was one of three months. Therefore they did not compensate Mr Dunseith for the entirety of the period of his loss but for a period of three months beyond the date of this dismissal.
8. The Employer appeals against this. It claims that the Tribunal did not give the company any opportunity to query the amount awarded. It also did not ask the Applicant for any proof of his period unemployment. It also criticises them for failing to consider whether Mr Dunsieth had contributed to his dismissal so as to reduce the amount awarded. In essence what they were doing was seeking to reopen the question which they had not appealed namely the Tribunal's prior decision that his dismissal was not by reason of gross misconduct as they had alleged, but was for want of capability.
9. It is clear to us that the Tribunal did make findings of fact based on evidence which they accepted from the Applicant. The Respondent was represented before the Tribunal by its Managing Director and had every opportunity, if he had wished, to have tested that evidence and argued against it. There is no question in our judgment of the Tribunal being legally obliged to have regard to contribution when they were proceeding with the matter on the basis of want of capability. That which was manifested is the correct approach in law namely to consider the likelihood that the process which was already in traits might have proceeded to a fair dismissal within a limited period of time. They did so. They made their findings of fact. In our judgment there is nothing whatsoever in their careful and well reasoned decision which can remotely be described as an error of law given that the point of law which had appeared to have arisen before the Employment Appeal Tribunal concerning the make up of the Tribunal between the two hearings has now been resolved. It is our judgment that this was a correct decision in law and that the appeal Quartz Eclipse Ltd should be dismissed.