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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Alpha Business Computers Ltd v Brassington [1995] UKEAT 1101_94_0703 (7 March 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/1101_94_0703.html Cite as: [1995] UKEAT 1101_94_703, [1995] UKEAT 1101_94_0703 |
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At the Tribunal
THE HONOURABLE MR JUSTICE MUMMERY (P)
LORD GLADWIN OF CLEE CBE JP
MRS M E SUNDERLAND JP
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellants NO APPEARANCE OR
REPRESENTATION
BY EITHER PARTY
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal brought by Alpha Business Computers Ltd against the decision of the Industrial Tribunal held at Manchester on 23 August and 13 September 1994.
The other party to the proceedings was Miss Julie Brassington, who had been formerly employed by Alpha Business Computers as a computerised accounts clerk and office administrator. She brought proceedings for unfair dismissal by Originating Application presented on 21 January 1993.
The Tribunal decided unanimously that compensation should be paid to Miss Brassington for unfair dismissal. The calculation of the appropriate amount of compensation has caused an unusual amount of difficulty. This is the second time that the matter has come to the Employment Appeal Tribunal.
It was last before this Tribunal on 28 April 1994. The Tribunal decided that they could not go into detailed matters about the calculations, as the Tribunal is not entitled to find facts, except in obvious and uncontested cases, and therefore was unable to make the necessary calculations. The Tribunal was, however, satisfied that there were matters raised which required to be looked at. The case was remitted to the same Tribunal with a request to re-consider the assessment of compensation and to hear any further submissions, arguments and calculations which the parties wish to lay before them and to review their decision in the matter of compensation.
The Tribunal had a further hearing on 13 September 1994, pursuant to the remission of the matter by the Employment Appeal Tribunal. The Tribunal set out the Full Reasons for their decision which they notified to the parties on 1 November 1994.
Alpha Business Computers Ltd appealed against the recalculated figure on the grounds that the calculation has still not been correctly done. The Notice of Appeal was served on 17 November 1994. A preliminary hearing was fixed for today. Mr Bentley, the Managing Director of Alpha Business Computers Ltd, has appeared on behalf of the Appellant Company.
As is usual in preliminary hearings, the Respondent has not attended. We make a point of that, because that is one of three reasons why it is not possible for us to decide the correct figure today. We cannot decide the correct figure in the absence of an opportunity on the part of the Respondent to make submissions. That is the first reason. The second reason why we cannot recalculate it is that appeals to this Tribunal can only be brought on points of law.
In our view, any mistake that has occurred in these calculations is a matter of fact. We have no jurisdiction to find facts. Thirdly, we are not satisfied, even if we were entitled to come up with a final figure, that we have all the necessary information to do it.
For those reasons, we adopt the same course as was taken by the Appeal Tribunal on 28 April 1994: to remit the matter to the Industrial Tribunal for a further review after hearing any submissions, arguments and calculations which the parties wish to put before them.
We are of the view that it might be helpful to the parties, and to the Tribunal,if we indicated the areas in which we consider that there has been a mistake in the calculations. I will list what we consider to be the mistakes and indicate how they may be put right.
First, it is a confusing feature of the decision and Full Reasons, as typed, that there are references in certain passages, notably paragraphs 5, 9 and 14, to 28 August 1993, as a material date. It is not a material date. The relevant material date is 23 August 1993, that being the date of the hearing of Miss Brassington's claim for unfair dismissal by the Industrial Tribunal.
Secondly, there is, either as a result of a misunderstanding or a mistyping, an obvious mistake in sub-paragraph 3 of paragraph 14 of the decision under the heading "Future Loss". It is said "26 weeks to 29 July 1993". 29 July 1993 is not a material date. It appears to us that any calculation for future loss will not be 26 weeks to a date, but 26 weeks from a date. The material date would be 23 August 1993, the date of the hearing.
The third area, and the most important one in which there appears to be an error, is in the manner in which the earnings of Miss Brassington have been taken into account in calculating the compensatory award. On this point, we are in agreement, having only heard Mr Bentley on the matter, on the way in which he has prepared a revised calculation. According to his revised calculation, under the heading "Compensatory Award", there should be deducted, not only the sum of £2,127.28 as the amount received from the Company by Miss Brassington. There should also be deducted the amount earned by Miss Brassington during the period when she first took up her new employment in January 1993, down to the date of the hearing. According to the decision and according to Mr Bentley's revised calculation, that is an agreed figure of £3,561.49. So the figure for compensation, which in paragraph 14.2 of the decision is put at £4,636.19 should be further reduced by the subtraction of £3,561.49.
There is also, we consider, an error in the calculation of Future Loss. That should be the period of 26 weeks from 23 August 1993 at £164.71 a week. There should be deducted from that, the amount earned by Miss Brassington over the 26 week period from 23 August 1993. That is not the figure of £3,561.49 is in paragraph 14 subparagraph 3 of the Tribunal's decision. As we have indicated, that already should be removed to item 2 of the Compensatory Award.
On Mr Bentley's revised calculation, he has left the deduction for the amount earned by Miss Brassington during the post-hearing 26 week period blank. It may be possible for him to make a calculation which he can advance to the Tribunal. It is not possible for us, in the absence of submissions from the Respondent, to suggest what the sum should be. So to make it clear, if it is not already clear, what should be done, by way of re-calculation, is that under item 3 for Future Loss, there should be deducted from the sum of £4,282.46 a further sum, which will be the total amount earned by Miss Brassington during the 26 week period over which future loss is calculated.
We hope that that will make the position sufficiently clear to enable a revised calculation, along the lines of that prepared by Mr Bentley, to be carried out by the Industrial Tribunal, subject, of course, to any further arguments of calculations which Mr Brassington wishes to put forward on behalf of Miss Brassington and which Mr Bentley wishes to put forward on behalf of Alpha.
There is one further matter we would mention in Mr Bentley's revised calculation that might help to reduce the confusion. We would suggest that item 2(b) in his revised calculation should be the figure stated to be from 29 January 1993 to 23 (not 28) August 1993. Similarly, in his revised calculation, where it is stated on the figure after deductions, "Actual Loss at 28 August 1993", that should be "Actual Loss at 23 August 1993". That follows our comments on the mistaken reference in a number of places in the decision and in Mr Bentley's calculations to 28 instead of 23 August.
We hope that, with that rather lengthy explanation of the figures, it will now be possible for a final figure to be determined by the Industrial Tribunal without the necessity for a third appeal to this Tribunal.
We remit to the Industrial Tribunal to review the calculations.
