United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr G Keys, Solicitor Of- Messrs Ness Gallagher Solicitors Stewarton Chambers 95 Stewarton Street WISHAW ML2 8AG
For the Respondent	No Appearance Nor Representation

SUMMARY
UNFAIR DISMISSAL

Unfair dismissal – compensation – omission by Tribunal to adjudicate properly on claim for loss of earnings


 


THE HONOURABLE MR JUSTICE BEAN:

1. Mr Kenneth McCloy was dismissed from his employment by Mr Gordon MacDonald, trading as Gordon's Autoparts, on 15 October 2003. He lodged an Originating Application alleging that he had been unfairly dismissed. The employer failed to lodge a Notice of Appearance. The matter came before Mr H J Murphy, Chairman, sitting alone, in the Tribunal at Glasgow on 2 July 2004. After hearing Mr MacDonald, who applied to lodge a Notice of Appearance, substantially out of time, the Chairman held that there was no adequate explanation for the failure to lodge a Notice of Appearance in time. He also considered whether the respondent had any worthwhile defence to the claim and said that he was far from convinced that the respondent did.
2. The learned Chairman then went on to deal with some aspects of remedies. He held that it was quite clear that there was no defence to the claim for wages in lieu of notice and he made an award, though not the full amount claimed under that head. There was a claim for outstanding holiday pay, and, again, the learned Chairman held there was no defence to this part of the claim. The Applicant had not been paid the redundancy payment to which he was entitled since the employer had expressed the dismissal as being on the grounds of redundancy. Again, the learned Chairman made an award under that heading.
3. The final paragraph of the decision, as opposed to the Extended Reasons, reads as follows:-

"5. The applicant was unfairly dismissed by the respondent and the case be continued for a hearing on quantum."

4. However, in the extended reasons promulgated on 21 July 2004, the learned Chairman, after stating his reasons for having refused permission for late service of the Notice of Appearance, and for holding that there was no defence on liability, and for the specific awards which we have mentioned, stated this in paragraph 12:-

"I then proceeded to hear the remainder of the case."

and in paragraph 16:-

"I now refer to the question of compensation. It is clear that from 12 November onwards the applicant was unfit for work in the circumstances set out in the medical report A1. The applicant is not due any sum for loss of wages suffered by him during the period between the termination of his employment and the last mentioned date, because any loss sustained by him during that period is covered by the award of wages in lieu of notice. It is also questionable whether the applicant is entitled to any award for loss of wages for the period subsequent to 26 April 2004 when he would have been prevented from working in consequence of an accident."

5. Mr Keys, who acted for the Applicant below, as he has before us, made written submissions to the learned Chairman following receipt of his decision with Extended Reasons. These included submissions that the Applicant was entitled to an award of £250 for loss of statutory employment rights, and, more substantially, a submission that the Applicant is entitled to compensation for future loss of earnings from the period when his pay in lieu of notice ran out, up to the date of hearing, and, indeed, continuing.
6. There was also an outstanding issue of possible claim for injury to feelings but that was disposed of by the decision of the House of Lords in Dunnachie v Kingston upon Hull City Council and is no longer a live issue.
7. In his further decision promulgated on 1 September 2004, the learned Chairman, after referring to the Dunnachie issue, said this:-

"3. In his representations to the Tribunal, however, the Applicant seeks certain further sums. As explained in the reasons that accompanied the said decision, [that is, the extended reasons of 21 July 2004] I am satisfied that the applicant is not entitled to any further monetary award."

8. The Notice of Appeal, lodged on 1 November 2004, is stated to be an appeal from the decision of the Employment Tribunal of 1 September 2004. It is plain that Mr Keys' complaint is, in essence, of the failure of the Chairman to make an award for loss of statutory rights and his rejection of the claim for compensation for loss of earnings. Mr Keys tells us, and we are content to accept, that he had thought at the conclusion of the oral hearing on 2 July 2004, that the issues of quantum as a whole, other than the three specific issues which had been dealt with, were being continued for a further hearing and he is supported in that recollection by paragraph 5 of the Decision of the learned Chairman, to which we have already referred. In that case the Decision complained of would be the Decision of 1 September 2004. If that recollection was wrong, the Decision complained of would, strictly speaking, be that contained in paragraph 16 of the Extended Reasons of 21 July 2004. It would be quite inappropriate and unfair to be sidetracked into such theological discussions, and, we accordingly, gave Mr Keys leave to proceed as if the Appeal were from the Decisions of 2 July 2004, 1 September 2004 or both.
9. Turning then to the heart of the matter, it seems to us with respect to the learned Chairman, that paragraph 16 of the Extended Reasons does not deal adequately with the issues which arise on the claim for future loss of earnings. It is quite true that the medical report dated 30 June 2004 from the Applicant's general practitioner Dr Murphy, disclosed that when the Applicant had first attended the surgery on 12 November 2003 (that is to say, 4 weeks after his dismissal) he complained of stress and loss of sleep and was given a medical certificate accordingly; and that that medical certificate was renewed on a number of occasions until the stress was, so to speak, superseded by the unfortunate fact that the Applicant suffered a fracture of the fifth metacarpal on 26 April 2004.
10. But that is not sufficient in itself to dispose of the claim for future loss of earnings. Mr Keys submits, and we accept, that the question to be answered on the future loss of earnings claim, is, firstly, what would the Applicant's position have been had it not been for the unfair dismissal, in other words, would he have continued in employment? If he would, then, secondly, for what period is it reasonable that his absence from work should be laid at the door of his former employer with its consequent loss of earnings?
11. Paragraph 16 does not address these questions, and, it seems to us, that the proper course is to allow the appeal to set aside the Decisions of 21 July 2004 insofar as they refuse the claim for compensation for loss of earnings after the period of notice and make no award of compensation for loss of statutory rights and to remit the case to the Employment Tribunal to consider those issues. Mr Keys has stated expressly that he has no objection to the matter being remitted to the learned Chairman, who conducted the previous hearing, and we shall so order unless for any reason he is unavailable.
12. There should be an oral hearing of the compensation claim, and it may, as the previous one was, be heard by the learned Chairman.