United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS S GUIRGUIS (of Counsel) Instructed By: Messrs Lanyon Bowdler Solicitors 49 Church Street Telford Shropshire TE1 IDA
For the Respondent	MR DANIEL BARNETT (of Counsel) Instructed By: Messrs Wace Morgan Solicitors 2 Belmont Shrewsbury Shropshire SY1 1TD


 


HIS HONOUR JUDGE PROPHET

1. This appeal by Mr Shingler and cross appeal by his former employer A J Manson Limited arises in respect of the second decision by an Employment Tribunal sitting at Shrewsbury with Mr D G Davies as the Chairman and Mr Ward and Mrs McGowan as the lay members which assessed awards to Mr Shingler consequent upon that Tribunal’'s first decision.
2. In that first decision promulgated on 9 August 2001, the Tribunal found amongst other things that Mr Shingler had been unlawfully discriminated against under the Disability Discrimination Act 1995, had been unfairly dismissed, and was entitled to pay in lieu of notice. It followed that by way of remedy he became entitled to compensation in respect of all those matters.
3. The second decision was a reserved decision, although that was not stated on the decision itself, and it was promulgated on 15 May 2003. We understand that the fairly considerable delay between the liability hearing and the remedies hearing was due to problems with medical evidence.
4. The second decision reads as follows:

The unanimous decision of the Tribunal is that Respondent do pay to the Applicant:

(a) a sum of £2,189.00 for eleven weeks’' pay in lieu plus interest on same of £230.06;

(b) a compensatory award of £3,225.00 and interest thereon of £339.00 as compensation for disability discrimination;

(c) an amount of £3,000.00 as compensation for injury to feelings plus interest thereon of £630.00;

(d) a basic award of £3,600.00 and a sum of £200.00 for loss of statutory rights as compensation for unfair dismissal and interest on those sums of £399.38;

making a total amount of £13,813 as compensation for disability discrimination and unfair dismissal;

(e) no awards are made to the Applicant for holiday pay, damages for personal injury nor under Smith -v- Manchester.

5. At today’'s full hearing of the appeal and cross appeal Miss Guirguis of counsel represents Mr Shingler and Mr Barnett represents the employer. We are indebted to both for the quality of their submissions to us today.
6. There are frequent references in the Notice of Appeal from Mr Shingler’'s solicitors dated 17 June 2003 to alleged errors of law. We have reminded ourselves that essentially assessing compensation is the responsibility of the Employment Tribunal. The Employment Appeal Tribunal is loath to interfere with those assessments unless it becomes apparent that an Employment Tribunal has gone so substantially astray as to constitute an error of law.
7. Miss Guirguis has taken us through her skeleton argument which has several heads. However, without wishing to overlook her submissions as made under those various heads and which, with respect, overlap to some considerable extent it has emerged that a crucial point in this appeal which we have to examine is whether the Tribunal adequately explained why it decided that Mr Shingler should receive no compensation after 30 October 2000.
8. We will accept that it would have been better if the Employment Tribunal had explained that in greater detail. Nevertheless looking at the reasons as a whole we do not see them as failing the well known ‘'Meek’' test. We can understand why the Tribunal, faced with comprehensive medical evidence and a complex set of factors relating to Mr Shingler’'s condition, (some of which were unconnected with his employment) felt that it was appropriate to decide upon a date at which he should have mitigated his loss. Whilst not spelt out by the Tribunal, as again perhaps it might have been, we can see why the Tribunal considered that that date reflected the effect on him of the disability discrimination.
9. A further important point which has emerged from Miss Guirguis’'s submissions and which we find to have merit is in respect of the Employment Tribunal’'s finding on injury to feelings. Nothing is said in the reasons as to evaluating the distress to Mr Shingler caused by the discrimination before the Tribunal stated that their assessment was £3,000.00.
10. However they correctly indicated in the reasons that they were aware of, and were endeavouring to follow, the principles set out by the Court of Appeal in Vento [2003] IRLR 102. It is apparent that the Tribunal decided that putting injury to feelings within band three i.e. up to £5,000.00 was appropriate in the particular circumstances of this case and we are not disposed to disturb that as constituting an error of law.
11. Miss Guirguis has withdrawn her appeal on holiday pay. We have decided unanimously to dismiss the appeal.
12. We turn now to the cross appeal. Both sides accept that the Employment Tribunal erred in awarding interest on the awards for breach of contract and unfair dismissal. That means to that limited extent the cross appeal succeeds. There has to be a corresponding adjustment to paras (a) and (d) of the Employment Tribunal’'s second decision the effect of which is to reduce the overall award of the Tribunal by £629.44. Referral back to the Employment Tribunal in that respect is unnecessary since we can simply allow the cross appeal in that respect and substitute accordingly.
13. There were two further points in the cross appeal but Mr Barnett has indicated that if we decide to dismiss the appeal as indeed we have done he would withdraw those. Consequently we accept that withdrawal.
14. It may be appropriate to add that what we have said earlier caused us at one stage to consider whether seeking clarification of the reasons from the Employment Tribunal was a desirable course in this particular case. However in the event, having considered the matter carefully, we decided not to do so. The recent cases of English -v- Emery Reimbold [2003] IRLR 710 and Bax Global Limited –v- Frances French EAT 596/03 (unreported) draw attention to a procedure in appropriate and perhaps complex cases of a party seeking through the process of review directly with the Employment Tribunal some clarification of the reasons. That may obviate the need to pursue an appeal to the Employment Appeal Tribunal with the greater costs involved.
15. Summarising the position which we have reached therefore, the appeal by Mr Shingler fails and is dismissed. The cross appeal succeeds to the limited extent indicated above but is otherwise withdrawn.