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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Healey v. Exel Logistics Ltd [2000] EAT 84_99_0505 (5 May 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/84_99_0505.html Cite as: [2000] EAT 84_99_0505, [2000] EAT 84_99_505

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APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED.
For the Respondent	MR T LINDEN (of Counsel) Instructed by: Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB


 


JUDGE P CLARK

1. This is an appeal by Mr Healey, the Applicant before an Employment Tribunal sitting at Liverpool (under the Chairmanship of: Mr M D Homprey Davies) against that Employment Tribunal's 4^th decision [in this case] promulgated with extended reasons on 9 December 1998, following a hearing held on 20 November. Leave to proceed to this full hearing was granted by a division presided over by Judge Byrt QC sitting on 21 April 1999. Leave was then also given for the Appellant to amend his Notice of Appeal. That amended notice is dated 30 April 1999. Today, Mr Healey is unable to appear before us. Unfortunately he broke his arm last weekend. In these circumstances, rather than ask for an adjournment, he has asked us to consider the appeal on the basis of his amended grounds of appeal, supplemented by a written submission dated 3 May and received at the EAT yesterday, in his absence. We have read that submission, which addresses the points raised by Mr Linden in his skeleton argument on behalf of the Respondent, earlier served on the Appellant. We should say at the outset that the arguments are clearly presented before us on both sides. Mr Linden, who appears before us today, does not, as we would expect, seek to derive any unfair advantage to the Respondent from the Appellants absence. In these circumstances we are content to deal with the appeal on this basis.

Background

2. The Appellant commenced employment with the Respondent on 4 December 1995 as a driver based at their St Helen's Depot. He was at all relevant times a member of the Transport and General Workers Union, a union recognised by the Respondent. On 7 September 1996 he was elected by the membership of the union at St Helen's as the union Health and Safety Representative for the drivers. On 8 October 1996 the Respondent dismissed him. On 16 October he presented a complaint of unfair dismissal to the Employment Tribunal alleging that he was dismissed for a health and safety reason and/or because he was a Trade Union representative, such dismissal being automatically unfair. He also claimed interim relief. The Appellant also appealed internally against the dismissal decision. That appeal was allowed on 4 November 1996 and he returned to work on 9 November. An interim relief hearing took place before the Employment Tribunal on 13 November 1996. On the previous day an official of the union, Mr Tom Kirwan, faxed the Tribunal indicating that in light of the Appellant's reinstatement the interim relief application was withdrawn. However, the Appellant was not happy with the circumstances in which he found himself following his return to work and the Employment Tribunal, by their first decision promulgated on 18 November 1996, dismissed the interim relief application and stayed the unfair dismissal claim. On 27 November 1996 the Appellant was again dismissed. In these circumstances he pursued his original complaint. By a third decision dated 6 January 1997 his further application for interim relief was dismissed and by a "third decision reserved decision" dated 22 May 1997 his claims under s. 44 and 100 of the Employment Rights Act 1996 was dismissed. On appeal to the EAT (EAT846/97) a division presided over by Judge Levy QC, sitting on 20 May 1996, allowed his appeal and substituted a finding that he was automatically unfairly dismissed on Health and Safety grounds. Following the Employment Appeal Tribunal decision the Respondent agreed to reinstate the Appellant. However, questions arose over the precise terms on which he was to be reinstated. Those issues were canvassed at a further hearing before the Employment Tribunal held on 20 November 1998, leading to the fourth decision with which we are concerned in this appeal. For completeness we should observe that subsequently there were review proceedings, which resulted in further Tribunal decisions, numbered 5-8.

The Fourth Decision

3. The particular issues giving rise to challenge by the Appellant in this appeal were:

Whether the Appellant was entitled to be reinstated on terms that he returned as a Health and Safety representative and member of the Safety Committee, and

The basis on which his lost earnings between the date of dismissal and the date on which reinstatement were to be calculated.

On the first issue the Employment Tribunal accepted the Respondent's contention that under s.114 of the Employment Rights Act 1996, the benefits, rights and privileges which the Employment Tribunal has power to restore to a complainant are limited to contractual rights or those founded on contract. They held that they had no power to order that the Appellant be reinstated as a Health and Safety representative or member of the Safety Committee since the Respondent did not appoint him. He was elected by the union membership, which appointment was ratified by the Respondent. Since his dismissal he had been replaced as a Health and Safety Representative by the vote of the members of the union. For the Tribunal to order his reinstatement to the post of Health and Safety Representative would be to usurp the functions of the union and its members. There would be a fourth Health and Safety Representative, whereas the collective agreement then in force provided for only three. On the second issue the Employment Tribunal approached the calculation of lost earnings in this way. They found that during the period between the dismissal and reinstatement the Appellant had found other work in which the Appellant claimed he had performed on average 17 hours overtime per week.

They rejected his contention that his lost earnings with the Respondent ought to be based on basic pay plus 17 hours overtime. Instead, they considered two alternative calculations:

a) Overtime on the basis of the Appellant's average overtime actually worked by him for the Respondent prior to dismissal, 7.63 hours per week and

b) The average overtime worked by all drivers during the relevant period between the Appellant's dismissal and reinstatement, 12.1 hours. They opted for the latter basis.

In calculating his loss the Employment Tribunal deducted the whole of the Appellant's earnings earned from alternative employment during the relevant period.

The Appeal

4. 3 points arise from the Tribunal's determination of the two issues to which we have referred:

(1)Reinstatement as a Health and Safety Representative and member of the Safety Committee

The thrust of Mr Healey's submission is that, first he had a contractual right, under his contract of employment with the Respondent, to hold the post of Health and Safety Representative and that this right to be reflected in the Employment Tribunal's reinstatement order. Secondly, he argues that he was the choice of the union membership at the St Helen's Depot to act as one of their Health and Safety Representatives.

In this connection he has sought, today, to put in further evidence consisting of statements by 2 colleagues, Messrs Price & Cook supporting the Appellant's efforts to regain his position as Health and Safety Representative. Mr Linden objects to the admission of that new evidence. We uphold that objection. That evidence could, with reasonable diligence, have been placed before the Tribunal on 20 November 1998. See Wileman v Minilec Engineering Ltd [1988] ICR 318. Our approach to this submission is to separate the facts of this case from the general question of principle raised. On the facts as found by the Tribunal it cannot be right to include in this reinstatement order a requirement that the Respondent accept the Appellant as a Health and Safety Representative in circumstances where he is not put forward by the union. It may be otherwise where an applicant adduces evidence, accepted by an Employment Tribunal, but he remains the choice of his Trade Union. However, the question of law raised on such facts as to whether an Employment Tribunal has power to so order under s.114 of the Employment Rights Act 1996 must await decision in a case in which those facts arise. In short, we uphold the Employment Tribunal's determination of this issue on the facts as found.

(2) Lost Earnings

The first question is whether the Employment Tribunal permissibly assessed the Appellant's lost earnings on the basis of average overtime earned by the Respondents drivers during the relevant period, as opposed to overtime worked by the Appellant in alternative employment during that period for the purposes of s.114 (2) (a). In our judgment the answer is plainly in the affirmative. The question is what pay the Appellant could reasonably have expected to have received with the Respondent, not with some different employer. In that case, argues Mr Healey, he should not be required to give full credit for earnings in alternative employment which required him to work longer hours than the time which he would have worked with the Respondent. We see the merit of that argument as a matter of broad justice, but we are constrained, as was the Employment Tribunal, by the wording of s114 (4) (b). Credit must be given for remuneration paid in respect of the employment with another employer. There is no discretion. That is the credit which the Employment Tribunal gave in their calculation of loss. They were correct to do so. Finally, Mr Healey submits that he was put to additional expense in performing the alternative job. It is not clear if and to what extent that point was raised at the hearing on 20 November 1998, however, assuming that it was, we are satisfied that s.114 does not allow for any deduction to be made for additional expenses from the remuneration earned in alternative employment. That may be compared with the reference to expenses in s.123 (2) (a) dealing with the calculation of a compensatory award following a finding of unfair dismissal. In this respect we bear in mind the approach of the Employment Appeal Tribunal (Knox J, presiding) in City & Hackney Health Authority v Crisp [1990] ICR 95, where it was held that the obligation on an Applicant to mitigate his loss for the purposes of assessing a compensatory award under s.123 is expressly not imported into the calculations of lost earnings for the purposes of a reinstatement order under s.114.

(3) Mr Healey wishes to challenge, in this appeal, the basis of the calculation of his lost earnings by reference to a tax-free scheme in operation at the Respondents. It is quite clear to us that that point was not raised at the hearing on 20 November 1998. That appears from paragraphs 4.4 –4.6 of the Employment Tribunal's 6^th decision dated 7 April 1999 following a review hearing on 19 March 1999. We accept Mr Linden's submission that there are no exceptional grounds for allowing this point to be taken for the first time on appeal. See Jones v Governing Body of Burdett-Coutts School [1998] IRLR 521. Accordingly we shall not entertain this argument.

Conclusion

5. It follows that the appeal must be dismissed. The Respondent's cross-appeal has been formally abandoned and accordingly is also dismissed.