Taylor v Crawfordsburn Inn Ltd [2013] NIIT 00496

THE INDUSTRIAL TRIBUNALS

CASE REF: 496/12

CLAIMANT: Alex Taylor

RESPONDENT: Crawfordsburn Inn Ltd

DECISION ON A REVIEW

The unanimous decision of the tribunal is that:-

(1) The decision of the tribunal, recorded in the Register and issued to the parties on 31 October 2012 is varied on review, in the interests of justice, pursuant to Rule 34(3)(e) of the Rules of Procedure contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005, so that the respondent is now ordered to pay to the claimant the sum of £20,717.87, by way of compensation, arising out of the unfair dismissal by the respondent of the claimant.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Member: Dr C Ackah

Appearances:

The claimant did not appear and was not represented.

The respondent was represented by Mr R Rees, Legal Services Consultant, of Peninsula Business Services Limited.

Reasons

1.1 A decision in the above matter was recorded in the Register and issued to the parties on 31 October 2012, in which the tribunal found:-

“The claimant was unfairly dismissed and the respondent is ordered to pay to the claimant the sum of £21,948.18, by way of compensation.”

1.2 By letter dated 12 November 2012, the respondent’s representative made an application for review of the said decision. It will be necessary to refer to this letter in greater detail elsewhere in this decision. Mr Rees, who was not the respondent’s representative at the substantive hearing confirmed that the respondent was not seeking to challenge, at this review, the tribunal’s decision that the claimant was unfairly dismissed by the respondent and that the review by the respondent related solely to the amount of compensation ordered by the tribunal to be paid by the respondent to the claimant.

1.3 The claimant, as set out above, did not attend this review hearing and was not represented. In correspondence with the tribunal, prior to the review hearing, he confirmed that he did not wish to attend and to take part in the proceedings and it could proceed in his absence; and further, that he did not wish to make an application for an adjournment of the hearing on medical grounds. The claimant did not provide to the tribunal any written representations for consideration at the review hearing, pursuant to the Rules of Procedure.

1.4 The parties agreed the constitution of the tribunal, as set out above, for this review hearing.

2.1 Under the Industrial Tribunals Rules of Procedure, contained in Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (‘the Rules of Procedure’) it is provided as follows:-

“34

(3) … decisions may be reviewed on the following grounds only –

(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time; or

(e) the interests of justice requires such a review.

(1) An application under Rule 34 to have a decision reviewed must be made to the Office of the Tribunals within 14 days of the date in which the decision was sent to the parties …

(2) The application must be in writing and must identify the grounds of the application in accordance with Rule 34(3) and provide details of the grounds so identified …

…

(3) A tribunal or Chairman who reviews a decision … may confirm, vary or revoke the decision.”

2.2 By letter dated 12 November 2012, the respondent’s representative, Mr Rees, wrote to the tribunal making an application for review on behalf of the respondent. The application was in time pursuant to the Rules of Procedure. The letter, insofar as relevant and material, stated:-

“ … in accordance with Rule 35(2) there are two grounds for review of the judgment on remedy:

(1) Loss of earnings

Under Rule 34(d) new evidence has come to light since the hearing in relation to loss of earnings. It appears that the claimant was working/earning during the period awarded at Paragraph 4.5 of the reasons in addition to the declared new employment at the Marine Court Hotel in Bangor. According to a recent statement from food suppliers Lynas Foodservice Ltd (attached) the claimant was working in July 2012 at the following establishment:

Brown Trout Golf & Country Inn … near Coleraine, Co Londonderry, BT51 4AD (‘the Brown Trout’)

The statement of Alan Sleator explains that the claimant ordered food for a new menu on 26^th of July 2012. The respondent is also seeking further statements in relation to undeclared income of the claimant. In these circumstances the respondent applies for a reassessment of the claimant’s loss of earnings award.

(2) Personal Health Insurance Cover (‘PHIC’)

Under Rule 34(3)(e) the interests of justice require such a review with regard to the award of £2,200.00 for loss of provision of personal health insurance cover. The respondent believes that this can be considered on review in accordance with Williams v Ferrosan Ltd [2004] IRLR 607 and the overriding objective. Paragraph 4.5 awarded loss of permanent health insurance cover because the tribunal was satisfied that ‘the claimant has sustained a loss’ in that respect. However, there is legal precedence to the effect that this should not have been awarded:

In Knapton & Others v ECC Card Clothing Ltd [2006] IRLR 756 the Employment Appeal Tribunal held that no financial loss is incurred by loss of insurance cover unless the claimant took out replacement cover or the insured event occurred:”

“(31) … there is no claim for non-financial loss. It might be constructed as loss of peace of mind. There is no claim for financial loss because the claimants did not go out and purchase an insurance policy immediately after their dismissal. If they had, they would have put in a voucher for it and it would have been part of the compensation, we hold, which ought to have been awarded, but this was not the case.

(32) Having survived for 70 weeks without the insured event occurring, they have suffered no financial loss and if they were to be paid the sum which has been calculated is due to them, …, they would have received a windfall.”

In this case there is no factual finding that the claimant suffered a health condition after termination of employment which would have been covered by the benefit of the health insurance cover. The respondent consequently applies for this award to be set aside.

Yours etc.”

Attached to the letter was a statement for Mr Sleator in which he stated, inter alia:-

“I was contacted by Alex Taylor on 26 July 2012 to provide a sample of chuck tender to be used for a dish called Daube of Beef on a new menu he was doing for the Brown Trout in Coleraine … .”

2.3 The tribunal heard oral evidence from Paul Rice, a Director of the respondent. The tribunal also heard oral submissions from the respondent’s representative at the conclusion of the review hearing.

2.4 Mr Rees, although he had not been the representative of the respondent at the substantive hearing, did not dispute that, during the course of that substantive hearing, the respondent’s then representative had not cross-examined the claimant, in relation to any issue arising from the claimant’s evidence in respect of his loss of earnings and/or in relation to any failure by the claimant to mitigate his loss, following the date of his dismissal from the respondent; other than a limited cross-examination by him of the claimant, in relation to the failure of the claimant to obtain any reference from the Marine Court Hotel, Bangor, following the termination of his employment at that hotel on 15 June 2012. He also accepted that there had been no cross-examination by the respondent’s then representative in relation to the sums claimed by the claimant for the loss of the provision of personal health insurance cover; the cost of which was agreed by the representatives of the parties to be £2,220.00 annually/£185.00 per month; and that the respondent’s then representative had not referred the tribunal, in the course of his oral submissions, to the Knapton decision or any other relevant case law or commentary in relation to this head of loss and/or the entitlement of the claimant to make any such claim.

2.5 Mr Rees also accepted that, although the respondent’s representatives had issued a Notice for Additional Information on 28 June 2012, no information was sought in that Notice in relation to any issue of remedy/compensation. It is correct to note that the respondent’s representative also issued a Notice for Discovery of relevant documents on 28 June 2012, including:-

“ …

(2) Copy of all diary entries made by the claimant.

(7) All bank statements from 15^th December 2011 to date of the claimant and his wife/partner.”

Contained within the agreed tribunal bundle at the substantive hearing, were copies, provided on discovery by the claimant, of diary entries from January 2012 up to 24 July 2012 and a single current bank account page for the period 6 January 2012 to 1 February 2012 (with money out deleted).

However, as accepted by Mr Rees at this review hearing, no issue was raised by the respondent’s then representative at the substantive hearing, either in the course of cross-examination or by way of submission and/or by way of application, that all relevant documents which had been sought by the respondent, by way of discovery in the said Notice, including, in particular, the diary entries and/or the bank accounts, for the period up until the date of hearing, had not been provided by the claimant on discovery; or, insofar as they had been provided, this had been done in a selective manner by the claimant.

2.6 In a letter dated 13 December 2012 to the claimant, Mr Rees, sought additional information and/or discovery from the claimant, in relation to the claimant’s alleged employment at the Brown Trout, as referred to in the application for review, dated 12 November 2012; but also in relation to further alleged employment by the claimant at Thunderdome Café, Newtownabbey, in December 2011, which had not been previously referred to in the said application for review; together with discovery of relevant bank statements of the claimant from December 2011 to date of the said letter. In the absence of any response by the claimant, who by this time was no longer represented by legal representatives, the respondent’s representative made an application for Orders for Additional Information and/or Discovery and Inspection against the claimant in relation to the matters raised in the said correspondence. By letter dated 10 January 2013, the tribunal refused the application by the respondent for such Orders, on the grounds:-

“No application for any such Order could be considered and determined by the tribunal, if at all, before the tribunal had considered and determined whether the respondent had established the said ground of ‘new evidence’ for the application for review in relation to the tribunal’s decision in respect of loss of earnings.”

2.7 In his evidence to the review hearing, Mr Paul Rice accepted that, prior to the hearing in August 2012, the respondent had made no attempt to make any enquiries and/or to carry out investigations about where the claimant had been working, if at all, following the termination of his employment with the respondent. He informed the tribunal, in evidence, that the reason why the respondent had not done so was because it was confident it had a very strong case and therefore it did not need to concern itself with any issue relating to remedy. He further accepted, in evidence, that the absence of any Notice of Additional Information about issues of remedy could also have been related to the opinion held by the respondent, as set out above, and that it was therefore not necessary in the circumstances for such a Notice to be issued by the respondent. He acknowledged that, in general terms, the hospitality/catering business in Northern Ireland is relatively small and that, as a result, ‘everyone pretty well knows everyone else’; and, in these circumstances it would not be a difficult to ask to make relevant enquiries in the business about the claimant’s whereabouts. He acknowledged that the enquiries which he made, after the decision had been issued, which had led to this application for review, could therefore have been made prior to the hearing and with probably the same degree of success. He confirmed he had not done so, as he had not been worried, prior to the hearing, an award would be made to the claimant by the tribunal.

He further accepted he knew, prior to the hearing, the claimant had left his employment with the Marine Court Hotel, Bangor, on or about June 2012 and for the reasons, as set out above, no particular enquiries had been made amongst the hospitality/catering trade in the immediate period from June 2012 to the date of hearing in August 2012. Mr Rice had some personal difficulties during this particular period; but he fairly and properly accepted such enquiries, if it had been decided to make them, could have been made by others, such as his brother, a fellow director of the respondent. The tribunal also noted that, regardless of personal enquiries by Mr Rice and/or his brother, such enquiries could have been made, at all relevant and material times, by the respondent and its representatives, using the tribunal’s interlocutory Rules of Procedure. The respondent was represented, at all relevant and material times, by a firm of representatives with wide experience of representing parties, in particular employers, in the industrial tribunals in Northern Ireland, as well as the Employment Tribunals in Great Britain.

2.8 Mr Rice, at some date in or about October 2012, began to make enquiries in relation to the employment of the claimant since the termination of his employment with the respondent in December 2011. As a result of these enquiries, he was given information, which suggested, but no more than that, that the claimant had been working at the Thunderdome Café in Newtownabbey in or about December 2011; but no other relevant details were obtained by him about any such employment, including dates/wages, etc. Mr Rice knew of this information in or about October 2012 and before the application for review was made. However, in the application for review, there was no reference to this alleged employment nor was there any statement provided to the tribunal from any of Mr Rice’s informants about the claimant’s alleged employment at the Thunderdome Café. No good reason was given to the tribunal for the failure to include any reference to this alleged employment at the Thunderdome Café in the said application for review. No application was made to include it as ‘new’ evidence for the purposes of this application for review; but in the circumstances the tribunal decided to include it in the said application for review; and insofar as necessary to extend any time-limit for the making of any such application for review on the grounds it was just and equitable to do so. In doing so, the tribunal was satisfied the claimant had been made aware of the respondent’s allegation that the claimant had been employed in December 2011 at the Thunderdome Café in Newtownabbey in the respondent’s representative’s letter of 13 December 2012 to the claimant, referred to previously. The claimant had decided for his own reasons not to attend this hearing.

2.9 Mr Rice accepted that the statement of Mr Sleator, attached to the application for review, did not confirm the claimant was working for the Brown Trout on 26 July 2012. However, he contended, in his experience, it would be unusual for a Chef to ask a supplier to supply meat for use in a sample menu at a particular business unless the Chef was working for that business at that time; although, he accepted it was not impossible that a person, such as a Chef, who was unemployed and seeking work, could seek to obtain employment by demonstrating a sample menu to a prospective employer.

2.10 The respondent’s representative, in a letter dated 15 January 2013, wrote to the Brown Trout for some clarification but received no reply. The tribunal was concerned to note that, in the letter, the respondent’s representative wrote:-

“The tribunal asked us [tribunal’s emphasis] to obtain details … .”

Mr Rees accepted this had been wrongly phrased and the tribunal had never made any such request. The respondent’s representative is an experienced representative in employment matters. In these circumstances, the tribunal considers the above phraseology was wrongly used by the respondent’s representative to put pressure upon the Brown Trout to respond. In the event, as set out above, no reply was made by the Brown Trout to the letter and it was not necessary to consider this issue further in determining the issues, the subject-matter of this review.

2.11 The tribunal accepts that at no time during the substantive hearing did the claimant suggest, in evidence, he had worked at Thunderdome Café and/or the Brown Trout, following the termination of his employment with the respondent on 15 December 2011; albeit he set out, in evidence, in some considerable detail, his attempts, during the said period to obtain employment, which were unsuccessful other than his said employment at the Marine Court Hotel in Bangor.

3.1 It has long been established that tribunals are understandably cautious about allowing decisions to be re-opened on grounds of new evidence (Rule 34(3)(d) of the Rules of Procedure). As set out in Blackstone’s Employment Law Practice 2012, Paragraph 13.23, the power to review on this ground is constrained by a number of conditions:-

“First, new evidence must be such that it was not reasonably available or foreseen at the conclusion of the original hearing.

In addition, tribunals follow the approach taken by the Court of Appeal, in determining whether to permit fresh evidence on appeal: Ladd v Marshall [1954] 1 WLR. Therefore to be admissible on review or appeal such evidence must satisfy three conditions (see Wileman v Minilec Engineering Ltd [1988] IRLR 144) …

(1) the evidence could not have been obtained with reasonable diligence for use at the tribunal (as provided in Rule 34(3)(d); and

(2) the evidence must be such that, if given it would probably have an important influence on the result of his case, though it need not be decisive; and

(3) the evidence must be apparently credible.

Thus new evidence which demonstrates that a witness on whose evidence much turned was telling lies is likely to lead to review, but only if it would make a material difference to the outcome … .”

3.2 The tribunal is satisfied, if it had been established that the claimant had obtained employment at the Brown Trout at some date following the termination of his employment on 15 June 2012 at the Marine Court Hotel and the hearing of this matter in August 2012, this could have had an important influence on the outcome of the case in relation to the amount of compensation for loss of earnings, depending on the nature of any such employment, the salary of the claimant and/or whether any such employment was permanent or temporary. The tribunal is satisfied, if it had been established that the claimant had obtained employment at the Thunderdome Café at some date following the termination of his employment with the respondent on 15 December 2011 and the commencement of his employment at the Marine Court Hotel in Bangor on 23 January 2012, there would have been some influence on the outcome of the case in relation to the amount of compensation for loss of earnings. However, the tribunal concluded it would had been small as the period would have been short and the employment unlikely to have been permanent, since he began work at the Marine Court Hotel in Bangor on 23 January 2012, just after a month after leaving the respondent’s employment.

3.3 The evidence from Mr Sleator did not confirm, as set out above, the claimant was employed at the Brown Trout. However, despite its limitations, the tribunal was prepared to accept, for the purposes of this review, it was credible evidence and, as set out above, could have had some important influence on the result of the case, in relation to the amount of compensation to be awarded by the tribunal for loss of earnings.

However, in relation to the evidence about the alleged employment in the Thunderdome Café, the tribunal was not prepared to accept, for the reasons set out above, it was likely to have had an important influence on the outcome in relation to the amount of any award of compensation by the respondent to the claimant. There was no detail of any earnings during this period. Further, in particular, there was no statement from any of Mr Rice’s informants, in contrast to the statement from Mr Sleator. Since the tribunal did not accept such evidence would have had an important influence on the outcome this would have been sufficient in itself to defeat the application for review in relation to the ‘new’ evidence relating to the Thunderdome Café (but see later).

3.4 However, the issue of where the claimant was employed, following the termination of his employment from the respondent on 15 December 2011 until the date of hearing and/or whether he had mitigated his loss during the said period were matters which could and should have been investigated by the respondent and/or its representatives. Further, it was apparent from the evidence of Mr Rice, that, given the relatively small size of the hospitality/catering industry in Northern Ireland, such information relating to the whereabouts of the claimant would not have been difficult to find. Indeed, Mr Rice, when he did begin to make such enquiries, was able to find out the information from Mr Sleator, which was attached to the application for review.

However, the respondent decided not to make any such relevant enquiries/ investigations prior to the hearing because it believed that it had a strong case on liability and it would not be required by the tribunal to make any award of compensation to the claimant. In this context, and consistent with that view, no Notice for Additional Information was sought by the claimant prior to the hearing and, during the hearing, he was not cross-examined in any way, by the respondent’s representative, on his evidence relating to his employment following the termination of his employment with the respondent and/or his mitigation of loss during that period. As referred to in the decision, the respondent’s then representative, was a former barrister in practice and prior to the hearing, had been employed as an Employment Consultant for a period.

In the circumstances, the tribunal was satisfied the ‘new’ evidence relating to the Brown Trout, but also the Thunderdome Café, if it was necessary to consider it further, could have been obtained with reasonable diligence by the respondent – but there was a failure to do so. As stated previously, such diligence is required to be shown if the application for review, pursuant to Rule 34(3)(d) of the Rules of Procedure is to be successful. Since it was not shown, the application for review could not be granted by the tribunal in relation to this ‘new’ evidence.

3.5 Further, in the case of Bingham v Hobourn Engineering Ltd [1992] IRLR 298, the Employment Appeal Tribunal held that:-

“Where there is a deliberate choice not to use a particular category of evidence, it is of no avail to show that had a different choice been made some parts of that evidence could not have been obtained with due diligence because, by definition, there has been no diligence whatever used to obtain that particular category of evidence. The matter is not a question of whether enough trouble had been taken but a question of a deliberate choice not to use this particular type of evidence. That choice, therefore, be it right or wrong, is one which is binding and should not be allowed to be gone back on. In such circumstances, the test set out in Wileman v Minilec Engineering Ltd, as to whether the evidence could have been obtained with reasonable diligence, is irrelevant.”

Although in the present case, there are some differences with the facts in the Bingham case and it was not a choice by the respondent, not to use a particular category of evidence, but rather it was a deliberate choice not to investigate and/or make certain enquiries and/or to challenge in cross-examination the evidence given by the claimant relating to issues of remedy in respect of loss of earnings/mitigation of loss, the tribunal is satisfied that, as in Bingham, by analogy, the respondent is bound by that choice and could not be allowed to go back on it.

4.1 The tribunal was therefore not satisfied the respondent had established the tribunal’s decision, in relation to the amount of compensation to be paid by the respondent to the claimant in respect of loss of earnings, should be reviewed, pursuant to Rule 34(3)(d) of the Rules of Procedure.

However, as set out previously, the respondent’s representative, in his letter dated 12 November 2012, also made an application for review in relation to the amount of compensation awarded by the tribunal for loss of provision of personal health insurance cover, in the sum of £2,200.00, on the grounds that the interests of justice require such a review, pursuant to Rule 34(3)(e) of the Rules of Procedure.

4.2 It has to be recognised that the Knapton decision, referred to in the said application by the respondent’s representative relates, inter alia, to compensation for loss of life cover and does not directly relate to the loss of personal health insurance cover. The claimants in Knapton had been members of a final pension scheme, which included life cover. However, as seen in Korn (Employment Tribunal Remedies, 4^th Edition, Paragraph 8.39) under the heading ’Medical Insurance’ the decision in Knapton is cited with approval, as applying to such a loss.

In the case of Fletcher-Cooke v The Board of Governors of Hampton School [2007] UKEAT/0366, an issue arose in relation to a failure by the employment tribunal to make an award for loss of BUPA membership. The Employment Appeal Tribunal dismissed an appeal on this issue, as there was no evidence in relation to the BUPA claim. However, in the course of its judgment, the Employment Appeal Tribunal, noted with approval that, in Knapton, the Employment Appeal Tribunal had upheld the judgment of the tribunal that the employees should not be entitled to any compensation up to the hearing date because the risk covered had not occurred and the employees had therefore suffered no financial loss; but it had also upheld the tribunal’s judgment that the employees were entitled to be compensated for their future loss of life cover by a payment to cover the cost of life insurance in the future.

Although these decisions are not binding on this tribunal, in the absence of any relevant decisions of the Court of Appeal in Northern Ireland and in the absence of any further argument/submission by the claimant at this hearing, the tribunal concluded the above decisions should be followed in the present case.

4.3 The tribunal was satisfied that the ground for review, pursuant to Rule 34(3)(e) of the Rules of Procedure, namely ‘the interests of justice require a review’, is wide enough to allow the tribunal to review, in the circumstances, the issue of the amount awarded by the tribunal for loss of provision of personal health insurance cover (see further Sodexo v Gibbons [2005] IRLR 836 and Newcastle-upon-Tyne City Council v Marsden [2010] ICR 743 and also the terms of the overriding objective, to which the said Rules of Procedure are subject).

4.4 Mr Rees, during the course of submissions, agreed the relevant date for assessment of this matter by the tribunal was 10 August 2012, the final date of the substantive hearing. The tribunal accepts that, during the substantive hearing, there was no evidence by the claimant, relating to the loss of this cover and/or the risk covered had occurred, other than the provisions for such cover were part of his employment contract at the relevant time, the cost of same having been agreed by the representatives at the commencement of the substantive hearing at £2,220.00 per annum/£185.00 per month. Mr Rees further agreed, during the course of his submissions, at this review hearing, that, in Knapton, the Employment Appeal Tribunal, although it had not allowed compensation for loss of cover to the date of hearing, where the claimants had not taken out a replacement policy during that period and the risk covered had not occurred, had found that the claimants were entitled to compensation for a future loss of life cover.

4.5 In the tribunal’s decision, the tribunal had allowed compensation for future loss of earnings from 10 August 2012 to 28 December 2012. The tribunal therefore decided, on review, in the interests of justice, it should vary its decision and not allow compensation for the loss of the said cover in the sum of £2,200.00 from 15 December 2011 to 28 December 2012; but it should vary the said award and allow compensation for the period of future loss, namely from 10 August 2012 to 28 December 2012 in the sum of £185.00 per month – namely 4.5 months (approximately) - £833.00.

4.6 As a consequence of the said decision by the tribunal to vary on review, in the interests of justice, the amount of compensation for the loss of provision of the said cover, this has required the total monetary award, as set out in the said decision to be varied, as set out below:-

A Basic award £ 5,760.00

B Compensatory award

(i) loss of earnings £15,436.86

(ii) loss of statutory rights £ 350.00

(iii) loss of provision of personal health care

for period 10 August 2012 to

28 December 2012 (4.5 months

approximately at £185.00 per month) £ 833.00

Total £16,619.86

Less £ 1,661.99

(10% for contributory fault)

£14,957.87

Total monetary award A + B £20,717.87

(For the avoidance of any doubt, in the calculation, as set out above, there is no variation to the compensation awarded by the tribunal for loss of earnings, in its decision. As a consequence, there is no variation to the recoupment notice attached to the said decision.)

5.1 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 29 January 2013, Belfast

Date decision recorded in register and issued to parties:

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