United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR DANIEL MATOVU (of Counsel) Instructed by: Messrs ASB Law Solicitors Innovis House 108 High Street Crawley West Sussex RH10 1AS
For the Respondent	MR BRUCE CARR (of Counsel) Instructed by: Messrs Eversheds Solicitors Eversheds House 70 Great Bridgewater Street Manchester M1 5ES

SUMMARY

Unfair Dismissal

Liability

Reasonableness, consultation in a redundancy dismissal – perversity alleged in relation to ET's conclusions on this and a chance of Applicant retaining his employment if fair procedure used.

Remedies

Alleged error of law in ET's failure to discount award for future loss of earnings for accelerated receipt and perversity challenge to findings on failure to mitigate.


 


THE HONOURABLE MRS JUSTICE COX

1. This is an appeal from a decision of the Manchester Employment Tribunal, promulgated on 4 August 2003, that the Applicant was unfairly dismissed and, further, that he had had a 50% chance of retaining his employment. The Appellants, First Choice Airways Limited, also appeal against the decision of the same Tribunal, following the remedies hearing, to award the Applicant the total sum of 39,305.08 by way of compensation. That decision was promulgated on 27 November 2003. Both appeals are before us today.
2. In relation to the liability decision, the relevant facts found by the Tribunal were these. The Applicant, Mr Mallam, had been employed by the Appellants as their E-Solutions Manager and was based in Manchester. He commenced his employment on 5 February 2001. The Appellants were part of a group of companies all operating in the travel trade. They had an operational base with employees in Gatwick and, in the summer of 2002, they decided to move their operational base from Gatwick to Manchester and some of the staff based at Gatwick were made redundant. This did not directly affect the Applicant's job, although the head of Information Technology (the Applicant's immediate line manager) did propose to leave his employment in October 2002 as a result of the move to Manchester.
3. From July 2002 onwards the Applicant was required to report to Ms Foxley, the Group Systems Planning and Development Manager, rather than to the head of IT. Ms Foxley and Ms Dickinson (the Computer Services Manager) had been asked by the Appellants to consider in a review what changes might be made to the Information Technology Department and its structure to make sure that it met the needs of the business in the future.
4. They started their duties in August 2002. The fact that they were to do a review and certain other changes were found to have been announced to the staff on 7 August 2002 in a particular document. The announcement referred to what the Appellants called the "Unity Programme" which was a continuing attempt to reform their IT services to that they met the group requirements.
5. The Tribunal recorded at paragraph 6 that it was agreed that the Appellants had notified their employees that they were conducting a review of the IT function and the Tribunal found:

"…they seemed to suppose that that announcement was likely to have alerted the individual employees to the possibility that they might be made redundant. It is often the case that employers think that employees will anticipate something from such a vague announcement. It is our experience in these Tribunals that such an expectation is misconceived. An announcement of a review is not in any way a warning that redundancies are likely to occur."

6. After this announcement, from about 7 August 2002, Ms Dickinson and Ms Foxley worked in the Manchester office on an average of 2 days a week. They had a number of meetings and discussions about the work of the Department. Ms Foxley gave the Applicant some instructions which changed and enlarged his duties to an extent from time to time and she also discussed with him the work of the staff who reported to him. Ms Dickinson and Ms Foxley had a number of meetings with the Applicant about the organisation of the work, but it was agreed that they did not consult him about any proposal to remove his post from the structure.
7. In due course, in September 2002 the Appellants advertised the post of Head of IT and produced a job description for that post. The job description covered the responsibilities the post had for various areas, including the development of IT in which the Applicant was employed. But the Tribunal found that the job description would not alert an employee to the level at which the post-holder was to be responsible, or to the day-to-day duties expected of the post. It did not therefore in any way indicate that the structure of the staffing was to be changed and the Tribunal found that, at the stage of the advertisement, research was still being done by Ms Foxley and Ms Dickinson into what they thought the structure should be. No decisions about that had been made.
8. The Applicant did not apply for that post. He could have done so, although it would have represented promotion for him. He had been employed in development of IT for some years. That was only one aspect of the whole responsibility of the Head of IT. He decided not to apply for that post despite the fact that the previous Head of IT had told him he had recommended him for the post to a director of the Appellants.
9. The closing date for the applications for the post was 3 October 2002. The Applicant knew of that date but it was common ground that the dates of interviews and the actual offer of the post to the successful candidate were not generally made known to the rest of the employees at the time when they took place.
10. Ms Foxley and Ms Dickinson reported to the Appellants' Board on 29 October 2002 with detailed proposals for changing the structure of the IT department. The Tribunal found that one of their proposals was that the Applicant's post should be removed from the structure and that the development duties for which he was responsible should be dealt with by the Head of IT and the Group Intranet Development Team situated in the south. That, the Tribunal found, was when the proposals crystallised. By that time in fact a choice had been made for the Head of IT and it had been arranged that the successful candidate would start in post on 1 December 2002, although an announcement to that effect had not been made to the other employees.
11. The Managing Director of the Appellants approved these proposals and in due course they were also accepted by the Finance Director and the Operations Director. The Tribunal accepted Ms Foxley's evidence that she had then embarked on a series of meetings, including a meeting with the Applicant in order to discuss alternative positions which might be suitable for the affected employees including the Applicant. At paragraph 13 the Tribunal found:

"Ms Foxley clearly did not consider that she should consult the applicant about her proposals to see if he had any suggestions to make about the removal of the post itself and whether that was a sensible suggestion, or whether he had any other suggestions about the proposed alteration of the structure in the way in which she and Ms Dickinson proposed. She told us that she saw him to discuss the removal of the post and said "I explained what I'd decided"."

12. It was agreed, as the Tribunal record at paragraph 14, that Ms Foxley told the Applicant that his post was to be integrated with the position of Head of IT and she did this when she saw the Applicant on 26 November 2002, together with Ms Pearson, a Human Resources Manager.
13. The purpose of the consultation and the meetings was therefore found to be to discuss whether there was an alternative position available and to warn the employee that if nothing suitable were found he or she would be dismissed for redundancy.
14. From paragraphs 14 onwards the Tribunal then set out in detail the discussions which took place with the Applicant in respect of alternative employment and the application which in fact he made for one particular job. At paragraph 19 the Tribunal found that he was sent a letter which clearly indicated that the decision to remove his post had been made irrevocably and that the Appellants were consulting him about alternative posts only.
15. In evidence the Tribunal record at paragraph 16 that the Applicant said he had not applied for the Head of IT vacancy when it was available because he had assumed that his Development Manager role would continue in some form. A note to which the Tribunal referred said that he wished someone had made it clear that consideration was being given to removing his role at a time which would have allowed him to apply for the role of Head of IT.
16. The Applicant was told that he had been unsuccessful in his application for the alternative post at a meeting on 3 December 2002 when he was told that as a result he was redundant and that his employment would be terminated immediately. The Applicant did not seek to appeal against that decision. However, on 27 February 2003 he lodged an Originating Application with the Employment Tribunal complaining of unfair dismissal on the basis:

(1) that the Appellants had failed adequately to warn him of his possible redundancy when they were aware of the likelihood of a redundancy being necessary; and

(2) that they had failed adequately to consult with him and consider suitable alternative employment at an appropriate time.

17. The allegations were denied and the hearing took place. The Tribunal found that the Applicant was dismissed on 3 December 2002 with immediate effect and that the reason for the dismissal was redundancy within section 98 (2) (c) of the Employment Rights Act 1996.
18. At paragraph 25 of their reasons they correctly directed themselves that the next question for them to consider was that posed by section 98 (4) of the 1996 Act, namely whether

"…the employers acted reasonably in treating redundancy as sufficient reason to warrant his dismissal at the time the decision to dismiss took place. We have to answer that question in accordance with equity and the general merits of the case, taking into account the size and administrative resources of the respondents which are very considerable. We must remind ourselves that it is not what we would have done which matters. We have to ask whether the employers acted as a reasonable employer in their line of business would have done. We must bear in mind that there may be a band of reasonable responses to any given situation and not merely one way of acting reasonably."

19. At paragraph 26 the Tribunal concluded as follows:

"…the respondents' decision to dismiss was not within the band of reasonable responses. It seems to us that there was no reason at all why Ms Foxley could not have told the applicant on or immediately after 29^th October 2002 that she was considering recommending removing his role and re-distributing his duties to the new Head of IT and the small development unit in Crawley and asked him for his views about those proposals. We do accept that the respondents consulted the applicant fully and properly about alternative vacancies. They told him effectively what vacancies they had. They offered to consider him for the posts that he wished to apply for. He did ask to be considered for the one post. Mr Matovu submitted that it was within the band of reasonable responses for the respondents to come to their decision about the new structure without consulting their employees whose posts were to be removed about the proposed new structure. He submitted that the fact that the managers had interviewed all the staff was sufficient in this case for them to make the decision without any consultation with the employees themselves about their actual proposals. In our view that submission completely misses the value of consultation when a decision has to be made. The value is that consultation allows those who are connected with the work to put forward any suggestions of their own or reasons why the proposals would not work sensibly. Mr Matovu said "Obviously the respondents had got to ratify the decision first". We do not agree with that proposition. Indeed, in this case there was a relatively small number of employees affected by the restructure, consultation would not have taken a great deal of time and the decision in our view should, as usual, have been made in the light of the potentially useful information given on consultation. In our view an employer of the size of the respondents with a dedicated Human Resources team should have understood the value of consultation. It was not within the band of reasonable responses in our view to treat redundancy as a reason to dismiss the applicant without consulting him about the removal of his post."

20. The Tribunal went onto find that the Appellants had acted reasonably in deciding whether the Applicant's skills were sufficient for the alternative post and comparing him with the person specification and that they reasonably rejected him. They found a period of one week to be a reasonable time period during which he was being considered for dismissal and that it was within the band of reasonable responses for the appellants to make their decision to dismiss on the basis that there were no suitable alternative posts available at the time the decision was made.
21. Counsel for the Appellants then submitted in the alternative that the failure to consult the Applicant in respect of the removal of his post was a procedural error only and that if consultation had taken place he had no chance, or only a small percentage chance, of retaining his employment.
22. The Tribunal were referred to the well-known case of Polkey v A E Dayton and Company [1988] ICR 142. At paragraph 29 of their Reasons they found that if the Applicant had been consulted about the removal of his post and the reorganisation of the structure in the way proposed he would have said that:

"…he felt Ms Foxley and Ms Dickinson had underrated the size of his role and that it could not conveniently be combined with the Head of the IT role…"

23. The Tribunal held that they were entitled to consider the actual matters put forward by the Applicant together with the other evidence in the case in deciding whether he would have had a chance, and if so what chance, to persuade his employers that their decision was wrong.
24. At paragraph 31 they found that this was not a case where there was a sudden or pressing economic reason for drastic action. They stated:

"The respondents therefore were in a position to choose to maintain any post if they were persuaded that the benefits of retaining it outweighed the cost and it has not been suggested otherwise. On the other hand, the respondents had the benefit of employees in the group elsewhere acting in a similar role. We think on the basis of that evidence and bearing in mind the nature of the argument which Mr Mallam could and would have put forward if consulted about the removal of his post, this is a case where he only had a percentage chance of retaining his employment."

25. In considering the Applicant's arguments and whether they had a percentage chance of success, the Tribunal observed at paragraph 33:

"The decision challenged here is whether the post should have been removed. In our view in this case we can consider the applicant's submissions about that point and whether they only had a percentage chance of success. It is not a question of our deciding what criteria should be applied for selection. It is an assessment of the likelihood of the applicant's likely arguments affecting the respondents' decision to remove the post."

They assessed his chance of retaining his employment had he been consulted at 50% (see paragraph 33).

26. In their two grounds of appeal the Appellants contend:

(1) that the Tribunal erred in law in holding that the Applicant was unfairly dismissed on the sole basis that he was not consulted about the removal of his post from the Company's structure although finding otherwise that the Appellants had properly consulted him in respect of alternative vacancies; and

(2) that the Tribunal wrongly or unreasonably assessed the chance of the Applicant retaining his employment at 50%.

We shall deal with these grounds in turn.

27. In support of the first ground Mr Matovu for the Appellant submits that it was not in dispute that there was here a genuine redundancy situation or that the review of the Appellant's business structure was conducted fairly and reasonably throughout. In these circumstances he submits that the Appellants were under no obligation to consult the Applicant about the removal of his post. This was a decision for his employers alone to take because it was concerned with the structure and organisation of their business and was quite separate from the question whether the Applicant should be made redundant or selected for redundancy.
28. Mr Matovu relied in this regard on a number of cases, starting with the decision of this Appeal Tribunal in the case of Mugford v Midland Bank Plc [1997] ICR 399. He submits, alternatively, that the Tribunal's decision on unfair dismissal on this basis was perverse in that it was not open to a reasonable Tribunal to conclude on this evidence that the decision to dismiss was not within the band of reasonable responses for the Appellants.
29. We do not accept these submissions. Firstly, whilst the eventual redundancy may well be genuine, this fact alone does not lead irrevocably to a finding that the consultation that has taken place was adequate or fair. Nor does the fact that there has been adequate consultation on one stage in the redundancy process, namely consideration for suitable alternative employment, mean that a Tribunal must find of necessity that consultation overall was adequate.
30. Secondly, the Mugford case, after a thorough review of the authorities, established amongst other things that the question whether or not an employer consulted adequately with an employee prior to redundancy is always a question of fact and degree for the Tribunal in each case depending on the particular circumstances and the evidence with which it is presented. At page 406 of the decision the EAT said:

"It will be a question of fact and degree for the industrial tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render the dismissal unfair. A lack of consultation in any particular respect will not automatically lead to that result. The overall picture must be viewed by the tribunal up to the date of termination to ascertain whether the employer has or has not acted reasonably in dismissing the employee on the grounds of redundancy."

31. This case, as Mr Matovu really accepted, is not authority for the proposition that an employer is never under an obligation to consult with an employee in respect of the risk of removal of his post. Nor did we derive a great deal of assistance in this case from other decisions to which we were referred, all of which provide good examples of how on their own particular facts the employer's duty of consultation is found to apply.
32. We were taken, for example, to the case of Moon & Others v Homeworthy Furniture (Northern) Ltd [1977] ICR 117 in which employees unsuccessfully argued that consultation should permit them to challenge the economic viability of a factory. In the case of Orr v Vaughan [1981] IRLR 63 the EAT held that what is to be done by way of a reorganisation of a business is largely for the employers to decide on the material which is available to them; and it is for the employers to decide whether the requirements of the business for employees to carry out particular work have ceased or diminished, if the employers act on reasonable information, reasonably acquired, that is the test and no more. However, we observe that in that case the EAT went on to hold that the Industrial Tribunal were entitled, on the evidence, to conclude that reasonable enquiries had not been carried out before the decision to dismiss the Respondent was made; that on the information she had the Appellant could not have been satisfied that it was the particular salon at which the Respondent was employed that was losing money and that there had not been the proper kind of enquiry as to which of the three employees at that salon should be dismissed. That case, in our judgment, serves to illustrate the point we make about these cases turning on their own particular facts.
33. Finally, Mr Matovu referred us to a very recent decision of this Employment Appeal Tribunal in the case of Securicor Omega Express Ltd v GMB [2004] IRLR 9. This was a case which was concerned with collective redundancies and consultation under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. Mr Matovu relied on one of the principles referred to at paragraph 22, namely that consultation does not need to extend to the economic background or context in which the proposal for redundancy arises.
34. None of the cases to which we have just referred seem to us to establish as a matter of law that an employer, in respect of the fairness of a dismissal, is never under an obligation to consult with an employee about the risk of removal of his post and is only obliged to consult as to the consequences of that decision, after it has been made.
35. It seems to us, as Mugford made clear, that this will always be a matter of fact and degree for the Tribunal.
36. On the evidence in this case the Tribunal concluded that adequate and proper consultation meant that the Appellants would have discussed the matter with this Applicant at an early stage prior to a decision being taken that his job was to be removed. The review was conducted over a lengthy period of time without the Applicant ever having been told that his employers were considering the removal of his post. In failing to consult him they had deprived him of the benefits of consultation when the decision about his post was still in its formative stage. The Tribunal had found that there were a relatively small number of employees involved in the restructuring and, given the Appellants' size and administrative resources, the Appellants should have recognised those benefits and consulted the Applicant accordingly.
37. It seems to us that the consultation which the Tribunal held was required in this case would not have involved the Applicant questioning the economic rationale for the review rather than the consequences of the employer's decision to integrate his post with that of the Head of IT, on which the Tribunal clearly felt that he was entitled to be heard.
38. Nor can it legitimately be contended in our judgment that the Tribunal reached a perverse decision on this issue. The test for perversity has recently been restated by the Court of Appeal in the case of Yeboah v Crofton [2002] IRLR 634. At paragraph 12 of the judgment Mummery LJ stated as follows:

"When the principal ground of appeal is, as here, perversity of the decision of the fact-finding tribunal, there is an increased risk that the appellate body's close examination of the evidence and of the findings of fact by the employment tribunal may lead it to substitute its own assessment of the evidence and to overturn findings of fact made by the employment tribunal. Only the employment tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an employment tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the employment tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the employment tribunal."

Returning to the matter at paragraph 93 of the judgment Mummery LJ said:

"Such an appeal ought only to succeed where an overwhelming case is made out that the employment tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has 'grave doubts' about the decision of the Employment Tribunal, it must proceed with 'great care'."

39. The challenge to the Tribunal's conclusions in the present case, in our judgment, does not begin to meet that test. There was found to be, as we have already stated, no pressing economic or other reason for the action taken by the Appellants. The Tribunal also found at paragraph 6, that the Appellants' review itself gave the employees no warning that redundancies were to follow; at paragraph 10 that the Applicant was not consulted about the removal of his post; and at paragraph 26 that there was no reason why the Applicant could not have been told on 29 October 2002 that his post was being considered for removal.
40. In considering questions of fairness the Employment Tribunal appears to us to have weighed up the competing contentions of the parties and approached the matter entirely properly. This first ground of appeal therefore fails.
41. In relation to the second ground of appeal, the Appellants are once again challenging the Tribunal's conclusions as to the percentage chance of retaining his post as perverse. Having regard to the Yeboah case, we regard this submission as unsustainable, given the Tribunal's findings at paragraph 31 that the Appellants had no pressing economic reason for drastic action and that they were able to retain any post if persuaded that the benefits outweighed the cost.
42. The evidence and the facts referred to by Mr Matovu in support of this ground would all have been considered by the Tribunal in arriving at their decision on the percentage chance and the entirety of the evidence, as it seems to us, was such as to permit of more than one conclusion. The assessment was a matter entirely for the Tribunal on the evidence they heard and in our judgment they were entitled to approach that question on a broadbrush basis. The fact that another Tribunal may have arrived at a different percentage assessment is not relevant to our consideration of the correctness of the Tribunal's decision.
43. We conclude that the Tribunal were entitled to find that the percentage chance, having regard to all the evidence, was 50% and in the circumstances, that that second ground of appeal must also fail.
44. The dismissal of the Appellants' appeal against the liability decision therefore leads us to the appeal brought against the Tribunal's decision on remedies. The Applicant was 55 years of age. The total sum awarded by way of compensation was £39,205.08 which included the basic award of £375. The Tribunal recorded at paragraph 1 that the parties had agreed that the Appellants should receive full credit for all the payments made to the Applicant and that those sums should be set off against the compensatory award. This was because he was dismissed without the notice to which he was contractually entitled and the Appellants paid him a sum which was partly a sum in lieu of his earnings in his notice period and also partly in lieu of the proper statutory redundancy payment.
45. The Applicant's net wages including car allowance for the 50 weeks since his dismissal were calculated at £35,527. The Appellants contended that the Applicant had failed to mitigate his loss, but after hearing the evidence in respect of the Applicant's efforts to find alternative employment the Tribunal found at paragraph 6 that there was no failure to mitigate, the burden of proof on that issue, of course, lying on the Appellants.
46. A further sum of £2,400 was awarded in respect of the Applicant's loss of the benefits of life insurance and medical cover. In respect of loss of pension benefit the Tribunal awarded the sum of £6,400. There was, in addition, the conventional figure of £200 awarded for his loss of statutory employment protection.
47. The Tribunal turned to future loss at paragraph 10 of their reasons. They considered that there were two aspects to the future loss which they felt it would be proper to reflect in the total award and they said as follows:

"There is a continuing likelihood of him losing at the total rate of earnings for a period and then a likelihood that he will continue to lose at a lesser rate. We think that the correct way to reflect all those possibilities is to take a period of six months at the present loss of £3,079 a month which gives us a figure in the region of £18,500 and then to take a period of four further years at a figure which we have decided should be £8,000. That figure reflects the possibility that he will get a job at a lower rate or remuneration and that he will get a job with a lower pension contribution although we do feel that the other fringe benefits are likely to be replaced once he can achieve some employment. Bearing those sorts of figures in mind we come to the conclusion that the figure for future loss here should be £50,500 doing the best that we can."

At paragraph 11 they decided:

"We think then that the correct method of reflecting the loss which we have found, and taking into account as we must do, the 50% chance is to say that on that basis we find that his total loss is likely to be in the region of the £35,527 interim loss of earnings, the future loss of £50,500, the specific pension loss of £6,400, the loss of benefits of £2,400 and the loss of protection at £200."

The Tribunal calculated that total sum and then divided by two to reflect the 50% assessment and arrived at the total figure to which we have already referred.

48. The Appellants sought originally to challenge the total sum awarded on a number of different grounds which are set out in the Notice of Appeal. Following discussions between the parties during this hearing, grounds (a), (b), (d) and (e) were not pursued and we shall therefore not refer to them further, save in relation to the final figures to be awarded by way of adjustment, which we shall consider at the end of this judgment. It seemed to us, however, that, with the appropriate pre-hearing preparation, these matters could all have been satisfactorily resolved before the matter came before this Appeal Tribunal.
49. That effectively left only two grounds of appeal with which we were concerned. The first challenge is to the Tribunal's findings on mitigation of loss. Mr Matovu submits that the Tribunal provided inadequate reasons to explain why they concluded that the Applicant had not failed to mitigate his loss or, alternatively, that these findings were perverse, having regard to the evidence.
50. In our judgment there was no merit whatsoever in this ground. As we have already observed in our decision on the liability appeal, the threshold for perversity is a high one. Mr Matovu spent considerable time in oral submissions referring us to the evidence which was before the Tribunal and to alleged inconsistencies in the Applicant's evidence. This was a time-consuming and wholly unproductive exercise. The challenge to the decision of the Tribunal on failure to mitigate loss comes nowhere near the threshold which must be crossed in order for the decision to be described as a perverse one. All the evidence was before them and in particular they heard from and assessed the Applicant's evidence as to his efforts to find employment. They made findings accordingly. They found expressly at paragraph 6 that they believed the Applicant and, although complaint was made initially about the inability on the part of the Appellants to call some evidence, in the event that point was not pursued before us.
51. Nor do we consider that there is any merit in the suggestion that they failed adequately to explain their reasons for the decision. The Tribunal set out their findings fully in paragraphs 2 to 6. Their findings included express findings that following his dismissal the Applicant had looked in national newspapers, had registered with specialist employment agencies and had used the internet in order to look for alternative employment. They accepted, despite the dispute between the parties, that the Applicant was only able to produce an incomplete, fragmentary record of his efforts to find alternative employment. As we have already stated, they found the Applicant to be a credible witness who was telling the truth about his efforts to find employment and they found that he had made a number of applications for posts in Information Technology. They concluded that it was reasonable for him in the initial period to restrict his efforts to posts at the level of responsibility and remuneration which he had been used to and that it was reasonable for him to seek work in the IT field. It was further held to be reasonable for him later on to seek to broaden his search for alternative employment. In conclusion, the Tribunal found that the Appellants had not proved that the Applicant had not failed to mitigate his loss.
52. That ground of appeal, in our judgment, was doomed from the start and fails.
53. The second ground of appeal relates to the award for future loss and the alleged failure to make any discount for accelerated receipt. In the Notice of Appeal it is expressed in this way:

"…the Tribunal wrongly calculated that the figure for future loss should be £50,500 over a period of four and a half years without any discount at all for accelerated receipt…"

54. In paragraph 10, to which we have already referred (see our paragraph 48 above), the Tribunal decided on the evidence that it was likely to take another six months for this Applicant to find another post but that when he did so that job would probably be at a lower rate of pay than he had received in his employment with the Appellants. Mr Carr for the Applicant submitted that in fact the Tribunal had not been addressed below on accelerated receipt and he took what we can conveniently describe as the 'Kumchyk point' in suggesting that it was not permissible for Mr Matovu to raise this point now before this Appeal Tribunal.
55. There was, however, some uncertainty about the extent to which the parties had an opportunity to advance these submissions before the Tribunal. We therefore decided, rather than taking up time attempting to get to the bottom of that dispute, that we should deal with all the issues raised. We therefore proceeded to deal with it as a substantive issue in this appeal.
56. We conclude that this Tribunal were perfectly entitled to assess a continuing partial loss of earnings of £8,000 as a benchmark or notional figure for a period of four years. They were doing so, as is clear from their reasoning in paragraph 10, on the basis that they were having to make an assessment based on a number of possibilities. Having done so, we conclude that there was no requirement for them then to have to go on to apply any further discount for accelerated receipt. Tribunals in such circumstances are required to make a reasonable assessment of the position in relation to future loss and not to undertake a precise scientific or mathematical calculation. This, we consider, the Tribunal did.
57. Nor do we consider that it can properly be suggested that their approach offended the decision of the Court of Appeal in the recent case of Bentwood Bros (Manchester) Ltd v Shepherd [2003] ICR 1000. The Court of Appeal in that case concluded that there ought to have been discount for accelerated receipt of sums awarded for two and a half years future loss of earnings. However, a distinction is properly to be drawn between that case, where the Tribunal had made a specific finding as to sums of money reflecting future loss of earnings to which the Applicant was entitled, as a matter of fact, and the position in this case, where the Tribunal were reflecting a number of possibilities by fixing a notional figure reflecting a partial loss of earnings for a period of four years.
58. There is no requirement, having taken that approach, for a Tribunal then to apply an additional discount for accelerated receipt of those notional sums. That ground of appeal therefore fails in addition.
59. In conclusion, the total award, with appropriate deductions following the parties' agreement on the various heads and our findings in this appeal, will amount to a particular figure which will now be ascertained with the assistance of the parties and incorporated in the final Order. That is the judgment of this Tribunal.

Discussion

60. After we delivered our judgment in these appeals Mr Carr applied for the Applicant's costs on the basis, essentially, that the Appellants had unreasonably pursued appeals against both the liability and remedies decisions which were wholly devoid of merit and bound to fail and with the aim only of staving off the inevitable payment due to the Applicant. In particular he submits, in relation to the remedies appeal, that the two grounds only which were ultimately pursued before us were hopeless from the start. The others, which were not pursued, could and should have been dealt with by discussions with the Applicant's representatives before the hearing, rendering the time spent preparing to deal with them at this hearing completely unnecessary.
61. In this Appeal Tribunal, pursuant to Rule 34 (1) of the 1993 EAT Rules, costs can be awarded against a party where it appears to us, amongst other things, that "any proceedings were unnecessary … or that there has been … unreasonable conduct in bringing of conducting the proceedings." In this case we consider that a distinction is to be drawn between the liability appeal, where the alleged error of law although in our view unmeritorious, could not properly be said to be unreasonably brought or pursued as a ground or appeal, and the remedies appeal, where we reach a different conclusion. In our judgment the two grounds of appeal eventually pursued before us were both wholly unarguable and raised no point of law which had the remotest hope of success and the Appellants acted unreasonably in bringing and pursuing them. We accept Mr Carr's submissions to this extent and there will therefore be an order for costs to be paid to the Applicant/Respondent in respect of the remedies appeal only, such costs to be subject to a detailed assessment if not agreed.