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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Degia v The Abbeyfield (Wey Valley) Society [1995] UKEAT 462_95_1210 (12 October 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/462_95_1210.html Cite as: [1995] UKEAT 462_95_1210 |
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At the Tribunal
THE HONOURABLE MR JUSTICE MORISON
MRS E HART
MISS C HOLROYD
JUDGMENT
PRELIMINARY HEARING
Revised
APPEARANCES
For the Appellant MISS C ANDREWS
(of Counsel)
Herrington & Carmichael
4 Station Road
Aldershot
Hampshire
GU11 1HU
MR JUSTICE MORISON: This is a preliminary hearing to determine whether the Notice of Appeal filed on behalf of the appellant, Mrs Degia, has shown any arguable point of law in her appeal against a decision of the Industrial Tribunal held at London (South) on 7th November 1994 and 6th March 1995.
The appeal is solely on the question of compensation.
The decision of the Industrial Tribunal on this point is set out at paragraph 11 of their decision on 24th March 1995.
The essence of the appeal relates to the operation of subsections 1 and 6 of Section 74 of the 1978 Act.
The brief facts relevant to this application are that the appellant was employed by the respondents to this appeal, at an establishment which provides extra care for frail elderly residents; that is, the sort of care that a caring relative would provide at home.
Miss Jones became matron in December 1993 and looked in to the drugs administration system. It is obvious, as it seems to us, that the proper adminstration of drugs in a home such as this is of paramount importance for the safety and welfare of the residents there. The appellant, who was employed there, was spoken to by Miss Jones, about a number of drug errors that had occurred in the previous few days. She was not given a formal warning, in the sense that she was not told that her job was in jeopardy, but the seriousness of her errors was pointed out, and the appellant said that she was sorry.
Despite that conversation, on 15th March 1994, there were three further errors. In addition the employers had discovered that she had failed to renew the stock of medicines and there was a further error again on 18th March 1994. On 26th March 1994, at a disciplinary hearing, the appellant was found guilty of misconduct, in that she had made continual errors in drug adminstration recording, and it was considered that it would be dangerous to keep her any longer in their employment. She was summarily dismissed.
The Industrial Tribunal came to the, perhaps surprising, conclusion, that the dismissal was unfair. The basis upon which they so concluded was that Miss Jones had not given the appellant any warning in relation to the events in February 1994, and she had not been informed of her right to appeal against her dismissal. Therefore, the dismissal was found to have been unfair for those procedural reasons. Accordingly, the Tribunal were constrained under the statute, to consider the question of compensation. The first question they had to ask themselves was: what loss had been sustained by the appellant in consequence of the dismissal, in so far as that loss was attributable to action taken by the employer. In other words, under 74(1) the Tribunal must identify the loss having regard to the employer's conduct. Having done that task, they were of the view that there was a 60% likelihood that even if she had been given a warning, she would have, nonetheless committed the offences in March 1994, and would have left the employment and therefore they identified the loss attributable to action taken by the employer as being whatever her loss was proved to be, but to which a factor of 40% would be applied.
The next stage of the calculation is for the Industrial Tribunal to have regard to the employee's actions, in so far as 74(6) permits them to do so. Where the Tribunal finds that the dismissal was to an extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable, having regard to that finding.
They did apply their minds to 74(6) and initially were of the view that they ought to reduce her compensatory award by 100% because of the facts which I have outlined. But having regard as they put it, to the fact that she was only going to get 40% of her losses in any event, in other words having regard to their decision under Section 74(1), they considered that it was appropriate that they should make a lessor deduction which they put at 75%.
The point raised in this appeal, is to say that the Industrial Tribunal have been guilty of double counting, against the interests of the employee. It is said that her conduct in March 1994 played a part, both under Section 74(1) and 74(6) in that the Tribunal were assuming that in relation to Section 74(1) she would have committed the offences and in relation to Section 74(6), that she had committed the offences in March 1994. It is said that that is wrong in principle.
It seems to us that it is entirely a matter for the Industrial Tribunal to decide what deductions are appropriate under Section 74(1) and 74(6): as Staughton LJ said in the case of Rao v Civil Aviation Authority [1994] ICR 495. In carrying out that task, Tribunals should bear in mind that what they have done under subsection (1) can effect what is just and equitable under subsection (6).
It seems to us, having looked at the terms in which paragraph 11 of the Industrial Tribunal's decision is expressed, that that is precisely what this Industrial Tribunal did in this case. As we have indicated, they have reduced the amount by which they would have reduced the compensatory award under Section 74(6) precisely because of their findings in relation to Section 74(1). We do not accept that that they were obliged to make only one deduction because of the appellant's threatened or actual behaviour. We take the view that the Tribunal is carrying out two separate functions under 74(1) and 74(6), as the Master of the Rolls said in the Rao case page 501 D to G. They have had regard, as they should have done, to the interplay of their judgment under the two subsections.
Accordingly, we are none of us persuaded that there is any arguable point of law raised by this appeal. We can see nothing to suggest that the Tribunal have misdirected themselves in law. Indeed, we believe that they have arrived at a conclusion which arguably may have been generous to the appellant in this case.
We understand that the parties have arrived at agreement as to compensation, subject to any decision of the Employment Appeal Tribunal. Bearing in mind that it is our view that this appeal should be dismissed, no doubt that agreement will now be implemented.
