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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ham Technology (UK) Ltd v. Tempest [2001] UKEAT 1370_00_2903 (29 March 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1370_00_2903.html Cite as: [2001] UKEAT 1370__2903, [2001] UKEAT 1370_00_2903

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MR RECRDER BURKE QC

1. There are two appeals before this Appeal Tribunal, arising out of a decision of the Employment Tribunal sitting at Bedford, chaired by Mrs Tribe and promulgated on a date which does not appear from our papers, but would have been subsequent to the hearing on 31 August 2000.
2. On that occasion, there were before the Tribunal the issue of the remedies appropriate in the case of Mr Tempest and Mrs Sander-Tempest, who had previously been found by the Tribunal, in a decision which was given orally with Summary Reasons on 3 May 2000, and subsequently set out with written Extended Reasons, sent out to the parties on 21 June 2000, that both of them had been unfairly dismissed by their employers.
3. This is the preliminary hearing of the appeals of the employers against the amount of compensation ordered to be paid in each case, in the case of Mr Tempest and Mrs Sander-Tempest.
4. The Tribunal hearing the remedies issues awarded Mrs Sander-Tempest compensation in the sum of £22,171.96 and awarded to Mr Tempest compensation in the sum of £52,640.00. The issues as to compensation (and it does not appear that any alternative remedies were in issue at all) were narrowed by a series of agreements between the parties.
5. After such agreements, the issues were, firstly, contributory fault; secondly, whether in each case the employee had taken reasonable steps to mitigate his or her loss, and, thirdly, the determination of any future loss of earnings. An award for loss of statutory rights also had to be assessed, but nothing turns on that.
6. We will deal first with the appeal in the case of Mr Tempest. In his case, the Respondents, through Ms Jeffers who has appeared on their behalf, take two points, both of which they submit are arguable at this preliminary stage.
7. The first point relates to the Tribunal's decision as to Mr Tempest's attempts to secure alternative income to replace that which he had lost when dismissed by his employers. The Tribunal concluded that the steps taken by Mr Tempest were entirely reasonable and that he had done all required of him in law to mitigate his loss.
8. In arriving at that decision, the Tribunal took into account the evidence of Mr Tempest that he had decided, at the age of 59 (which was his age at the termination of his employment by the employers) rather than to seek employment with another employer, to set himself up in a new business, and that he had not at first devoted all his time and attention to that new business, as the Tribunal found:

"not least because he was prevented by the terms of his contract with the Respondent from setting up in competition"

That evidence, given by Mr Tempest, the Tribunal accepted. The reference to the terms of his contract was a reference to a restrictive covenant in the contract of employment which prevented him, over the relevant period, from operating in competition with his previous employers, as they by the relevant time had become.

9. Ms Jeffers points out that the Tribunal had found in May 2000 that the employers had fundamentally broken the contract of employment by their treatment of Mr Tempest, and therefore Mr Tempest could not have been restrained from operating in competition with his ex-employers because the ex-employers would not have been able to enforce the covenants, pursuant to the well known principle in the decision in General Bill Posting Company Ltd v Atkinson [1909] AC 118.
10. It is, of course, correct that in general terms an employer who has repudiated the contact of employment cannot thereafter rely on restrictive covenants within that contract intended to control what the ex-employee does after that employment has ended. But in considering whether or not the employee, in taking into account a restrictive covenant and believing that it prevented him from operating as fully as otherwise he might have done in competition with his ex-employers, had acted reasonably for the purpose of considering mitigation it would have been necessary for the Tribunal to examine whether the ex-employee knew that the repudiation by the employers would have the effect for which Ms Jeffers contends. Unfortunately, there was no such evidence before the Tribunal at the hearing in August.
11. There was no evidence as to whether Mr Tempest knew that, because of the employers' repudiation, they could no longer rely on the restrictive covenant, because the point was not taken; and thus the history of Mr Tempest's acquisition of such knowledge, if any, never became relevant. It has to be pointed out too, that until the Tribunal decided in May that there had been a repudiatory breach of contract by the employers, the employers were denying that there had been such a breach.
12. In our judgment, the fact that this point was not taken below, and therefore Mr Tempest's knowledge was not explored below, is fatal to the point which Ms Jeffers has sought to develop, by way of her first argument, in support of this appeal. The first argument simply is not, in our judgment, arguable. On the evidence that was before the Tribunal, it is not suggested that the Tribunal had no material on which it could make the finding that it did.
13. Ms Jeffers has suggested that, in reality, Mr Tempest had set up the business before his employment with the present Appellants came to an end; but the express finding of the Tribunal at paragraph 7.2 of its Decision is to the contrary; and it is not suggested by Ms Jeffers that that finding was perverse. For those reasons, the first point taken by Ms Jeffers on behalf of the Appellants must fail.
14. Secondly, Ms Jeffers submits that the Tribunal fell into error in its assessment of future loss. The Tribunal awarded Mr Tempest compensation in respect of future loss of earnings in full from the date of the hearing up to the end of June 2001, a period of about ten months. Mr Tempest gave evidence about the prospects of his new business, which was already, of course, up and running at the time of the remedies hearing.
15. Ms Jeffers submits that as a result of the findings of the Tribunal based on that evidence, the Tribunal was wrong to award him compensation in full for the loss, from the date of the hearing to the end of June 2001, in respect of the earnings he would have received, had he not been dismissed, because he was, on the findings, and on his evidence, going to earn monies from his new business during that period. She submits that, in effect, the Tribunal appear to have decided that he would earn nothing up to the end of June 2001, but that thereafter, he would suffer no loss at all because he would, from that time, have been earning as much from his business as he was from his previous employment.
16. If Mr Tempest's evidence, and the findings of the Tribunal had been that by the end of June 2001 he would have been earning as much as he would have been earning under his contract of employment, had it not been terminated, then Ms Jeffers' point would be a good point, or certainly an arguable point; but that was not what the Tribunal found. What the Tribunal found was that he was hopeful that his current negotiations with a number of companies would come to fruition, and that he anticipated that, if contracts materialised, he would be in no worse position at the end of June 2001 than he would have been, but for his dismissal.
17. The Tribunal clearly did not find that Mr Tempest would have been in no worse position by the end of June 2001; it found that, if the contracts materialised, as he was hopeful would occur, then he would be in no worse position. Equally, there was a possibility which the Tribunal would have had to have considered on those findings and on the evidence that he might not, by the end of June 2001, succeed in achieving a position in which he was no worse off, and thus some loss would continue, for a period which could not be ascertained, after the end of June 2001. It seems perfectly plain to us that what the Tribunal did, approaching all the possibilities in a broad way, was to treat, as a proper assessment of compensation in those circumstances, loss of earnings up to the end of June 2001 as appropriate to reflect the alternatives for the future which the evidence manifested.
18. Ms Jeffers has submitted that Mr Tempest was particularly optimistic in his evidence that he would, indeed, achieve by the end of June 2001, what he hoped to achieve; and if it had been suggested to us that the way he put it in his evidence amounted to his being certain, or almost certain that he would reach that position, then we might have seen that there was an arguable point. But when pressed on this, Ms Jeffers has, very frankly, conceded that the way in which Mr Tempest put it was not higher than that he was hopeful.
19. In those circumstances, we regard this point too, as unarguable. It follows that this appeal against the amount of compensation ordered in Mr Tempest's case, must fail and is dismissed.
20. We turn, therefore, to the position of Mrs Sander Tempest, and we can deal with her very easily and quickly. In her case, the Tribunal said that it was satisfied that she had acted reasonably to mitigate her loss. The only argument, if it can be so described, put forward by Ms Jeffers, is that she is instructed by her clients to say that the evidence which Mrs Sander Tempest gave was inaccurate and deceptive. Ms Jeffers, of course, knows full well, and if they do not, her clients should also know full well, that findings of fact are for the Tribunal, and the Tribunal alone, and cannot be attacked in this Court, unless they are perverse, or unless, in making a particular finding of fact, the Tribunal has omitted some relevant material, or taken into consideration some material which was irrelevant or which it should not have taken into consideration.
21. No such criticism is made of the findings of fact made by the Tribunal in the case of Mrs Sander Tempest; there never was any substance in the appeal by the Appellants against the Decision in the case of Mrs Sander Tempest, and the appeal should never have been launched or pursued to a hearing here today. It, too, is dismissed.
22. Those who appear in this Employment Appeal Tribunal should not be prepared to put forward unarguable grounds merely because their clients instruct them to do so, and clients must know that if they are advised, as they always should be in such circumstances, that there is no arguable ground of appeal, they should not be instructing their lawyers to go and argue an appeal, nevertheless. The appeal in Mrs Sander Tempest's case is also dismissed; there is no arguable point in it.