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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mears v Lloyd Green & Co [2003] UKEAT 0707_02_0303 (3 March 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0707_02_0303.html Cite as: [2003] UKEAT 707_2_303, [2003] UKEAT 0707_02_0303

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APPEARANCES

 

For the Appellant	MR A SOLOMON (of Counsel) APPEARING UNDER THE EMPLOYMENT LAW APPEAL ADVICE SCHEME


 


MR RECORDER HAND QC

1. This is an appeal from the decision of an Employment Tribunal sitting at Stratford on 18 and 19 March 2002; their written decision by way of Extended Reasons having been sent to the parties on 13 May 2002.
2. We will say straight away that we think the appeal reveals a point of law which can be argued with reasonable prospect of success. Perhaps I ought to say a series of points of law which can be argued with reasonable prospect of success and therefore we will allow the case to proceed to a full hearing.
3. Because at first sight this might not appear to be a matter of great significance, we propose unusually to take the step of delivering a judgment, notwithstanding the fact that the matter is to go forward. We think we need to do that also because we are going to allow the Notice of Appeal to be amended and another point to be developed, which is not present in the Notice of Appeal.
4. Yvette Adrienne Mears, the Appellant, complained of unfair dismissal and breach of contract by the Respondent, a firm of solicitors, by whom she had been employed between 1 September 1998 and 9 February 2000. Some time before the hearing the Respondent conceded that she had been unfairly dismissed and dismissed in breach of contract. Mr Solomon, who has appeared on behalf of Miss Mears under the provisions of the ELAAS Scheme, tells us that this was a matter of days before the case was due to be heard, although it is impossible to be more precise than that.
5. As a result of that concession, the two-day hearing was concerned only with remedy and since the Appellant did not seek reinstatement what was under consideration was the amount of compensation to be awarded.
6. The Employment Tribunal considered the amount of the Appellant's annual salary, which was a contentious issue, and concluded that it was £29,000 per year gross. Having established that basis for calculation the Employment Tribunal next considered the loss suffered by the Appellant as a result of the dismissal. In this context they had to consider, in accordance with section 123 of the Employment Rights Act 1996, what amount was just and equitable in all the circumstances and in arriving at such an amount they also had to take into account any sums earned by the Appellant since the dismissal and whether or not the Appellant had taken all reasonable steps to mitigate her loss.
7. The Employment Tribunal directed themselves as to these matters at paragraph 5 of the decision. As such, there appears to be no misdirection in the terms of paragraph 5. The Employment Tribunal concluded that the Appellant had failed to mitigate her loss. This conclusion rests on two factual findings set out at paragraph 14 of the Employment Tribunal decision.
8. Firstly, the Tribunal decided that it was unwise of the Appellant to tell the employment agencies, who she contacted after her dismissal, that she was bringing these proceedings against her former employer.
9. Secondly, the Tribunal thought that it was irresponsible that she did not apply for a reference because, had she done so, she would have been given what the Tribunal described as an adequate reference.
10. The Employment Tribunal go on to say that the Appellant had:

14 "…good experience and qualifications as a senior legal secretary, including having passed part 1 of the Legal Executive exams, and we believe that she should have obtained a permanent position by the end of three months from her ultimate dismissal."

This period, the Employment Tribunal observed, was precisely the same as the contractual notice period which formed the basis of the breach of contract and in respect of which the Tribunal had calculated the Appellant's loss to be £5,325 (see paragraph 12 of the decision).

11. During this period the Appellant had earned money from work as a temporary secretary. The Employment Tribunal had to make some adjustments to the gross figures of £703, £406 and £1,370 which the Appellant had earned in March, April and May, to take account of the fact that the 3-month notice period would have expired in early May and to take account of the incidents of tax and national insurance deductions which the Tribunal did by deducting in total 32% from the gross sum. This produced a total of £1,124, which left a net loss for the period of £4,201.
12. After the 3-month period, the Employment Tribunal concluded that the Appellant should have found a permanent post at gross remuneration of £24,000 per annum. Thus, there would be an ongoing partial loss of earnings in the future. The Tribunal concluded that this loss would have continued for 18 months and awarded a further sum of £5,100 in respect of this period by taking the shortfall as £7,500 (that is to say, £5,000 shortfall per annum) and deducting 32% on account of tax and national insurance. Together with a basic award of £230 and a compensatory award in respect of loss of statutory rights of £200 the end result was that the Appellant was awarded total compensation of £9,731.
13. The Appellant sought a review of the Tribunal's decision on a variety of grounds set out under five paragraphs or headings in a letter dated 25 May 2002, which letter appears at pages 10-12 of our bundle.
14. Those grounds were as follows. Firstly, that the sum of £5,100 calculated in respect of future loss had been calculated by a reference to notional figures in respect of deductions for tax and national insurance (the 32% already referred to) and there was available to the Tribunal a precise method of calculation which would make a difference of an additional £642.
15. Secondly, review was sought on the basis that the Tribunal had decided that the Appellant had failed to mitigate her loss and only awarded 3 month's future loss of earnings. Under this head the Appellant raised a variety of matters including the fact that she felt she had been precluded from calling evidence relating to whether or not her employer would have given a reference had she asked for one.
16. The third ground related to holiday entitlement. The fourth ground related to a deduction from wages and the fifth ground related to costs.
17. The Chairman's reply in relation to this application, which is by a letter dated 12 May 2002 (although it seems likely that date is in error having regard to the date of the application for review), dismissing the applications is of interest to this Tribunal. It plainly is not a direct response to the Chairman to points raised in this appeal and that is a matter we have borne in mind.
18. The Appellant appeals against the Employment Tribunal's decision in her Notice of Appeal on three grounds. Firstly, that the Employment Tribunal's conclusion that the Appellant had failed to mitigate her loss was perverse. Secondly, that the calculation of the amount of partial loss of earnings was based on what might be called a 'guestimate' of the net figure, whereas there was before the Tribunal a Schedule which provided an accurate basis for calculation; and, thirdly, that the Employment Tribunal did not seriously entertain the Appellant's request for costs.
19. Mr Solomon seeks to add to those; I think ultimately it comes to three alterations. Firstly, he wishes to expand ground 1 of the Notice of Appeal by adding a ground that the Employment Tribunal improperly refused to allow Miss Mears to call evidence on whether the Respondent would have given her a reference or not. In essence, this is a matter that was canvassed on review but does not find expression in the Notice of Appeal in ground 1.
20. Secondly, as it seems to us, he wishes to alter ground 3 of the Notice of Appeal because, although it is currently expressed in terms of "did not seriously entertain" a request for costs, the position that he has put forward to this Tribunal is that the Employment Tribunal did not at all consider the matter of costs although an application had been made.
21. He wishes to add a fourth ground of appeal relating to two matters. Firstly, he points out that there was before the Tribunal what he has described as an agreed schedule relating to holidays. This is to be found at page 14 of our bundle and he points to the last entry in this document, which takes the form of a schedule or table, which shows that there was remaining on 31 January 2000 11 days holiday. That was a matter, he says, that was plainly before the Tribunal. It was a matter that the Tribunal ought to have dealt with and the Tribunal ought to have ordered compensation on the basis that the Appellant had not received holiday pay in respect of that outstanding matter.
22. Secondly under this fourth head, he wishes to raise the question of unlawful deductions. This was a matter that was put to the Tribunal by way of review but did not find its way into the Notice of Appeal. The decision is entirely silent on the question but Mr Solomon submits that clearly the matter was before the Employment Tribunal because if one looks at the addendum or schedule to the Originating Application (which is page 19 of our bundle), in the second paragraph of page 19 there is clearly reference to a wrongful or unlawful deduction of £900 from the salary placed into the bank on 31 January 2000 or thereabouts.
23. So far as ground 1 of the Notice of Appeal is concerned, we have given careful consideration to paragraph 14 of the Tribunal's decision. In the third sentence of paragraph 14, as we have already indicated, two matters are raised. So far as the reference is concerned, it seemed to us initially that this was a conclusion that the Tribunal might well have been entitled to reach on the material before it. However, that was not the only matter that the Tribunal thought had "brought problems upon Miss Mears in getting a new job." The other matter was the lack of wisdom in mentioning to employment agencies that she had a pending case in the Employment Tribunal
24. Leaving aside the question of whether or not there was a procedural difficulty or deficit attached to the reference aspect of failure to mitigate, which we will deal with in a moment, it seems to us there are reasonable prospects of arguing successfully that no reasonable Tribunal properly directing itself could conclude that it was unreasonable conduct on the part of the Appellant to mention to agencies who were putting her particulars in front of prospective employers that she had a pending claim in the Tribunal.
25. This is not a matter, we think, could be looked at differently by different Tribunals according to the factual context. It seems to us that the law requires that employees are honest in answering questions or in disclosing circumstances to prospective employers. That being so, we cannot exclude the possibility that this Tribunal has misdirected itself on the question of mitigation or reached a conclusion which no reasonable Tribunal properly directing itself could have reached.
26. The Tribunal regarded this as a matter that bore on the difficulty of Miss Mears getting other employment. In those circumstances it seems to us that this aspect of the case could be argued with reasonable prospect of success and the matter should go forward to a full hearing. That being so, the question that arises is whether the other aspect of paragraph 14, namely the failure to ask for a reference, is also a matter that she go forward to a full hearing.
27. As we have indicated, our initial conclusion was that this might be a matter that different Tribunals would decide differently; but having regard to the fact that the disclosure of the pending proceedings point is one that we think could be argued, this too we think is a matter that ought to go forward to a full hearing and we will allow the amendment that Mr Solomon has sketched out for us so as to enable the Appellant to argue that she was precluded from calling evidence on this matter.
28. Mr Solomon tells us that there were present at the Tribunal three witnesses who had evidence to contribute. The Chairman ruled, according to the Appellant's submissions, that such evidence could not be placed before the Tribunal. The Chairman in his letter of 12 May (wrongly dated) indicates that the Appellant was not prevented from calling any witnesses to the best of his recollection and that is not a matter that can be commented upon further here, although we think it is a matter that may have to be the subject of another Preliminary Hearing and we will hear further submissions on that in due course.
29. So far as the second ground of appeal is concerned, it seems to us that there is at least a possibility that the Tribunal did use the schedule Mr Solomon has identified at page 13 of the bundle, for the purpose of arriving at the net figure of £5,325 in paragraph 12. £5,325 is a multiple of £1,775 which in round figures is the net sum to be found in the schedule in respect of the last seven months from June 1999 to December 1999; the last seven months when £29,000 gross was being paid. That may be an indication that the Tribunal were using a precise method for arriving at the net loss of £5,325. If that is so, then it seems possible that their use of estimated figures in paragraphs 14 and 15 is inconsistent and, in any event, as the Appellant points out in her Notice of Appeal, there was before the Tribunal a method of precise calculation. Therefore, it seems to us that there are reasonable prospects of successfully arguing that the Tribunal has not calculated loss as precisely as it ought to have done in order to arrive at a just and equitable amount, as required by the statute.
30. So far as the third ground is concerned, as we have already indicated, the position adopted by Mr Solomon today was that there had been an application to the Tribunal and that the Tribunal have simply not considered it. This again is to be contrasted (with the same degree of caution) with the explanation at paragraph 5 in the letter refusing the application for review. There the Chairman says that there was no application made then, no application has been made as yet and the matter still remains open. Again it seems to us that this aspect might be capable of being argued with a reasonable prospect of success; but, as with the question of the reference, it is perhaps a matter upon which there may need to be further steps taken as to which we will hear further submissions in a moment.
31. So far as the fourth ground of appeal is concerned, that is to say, the proposed amendment, we bear in mind that the matter is plainly now out of time. We bear in mind that the matter is one that was raised by the application for review. Nevertheless, we take the view that, firstly, it appears to us that there may well have been material before the Tribunal in respect of unpaid holiday or money in lieu, that the Tribunal ought to have taken into account and, secondly, that there clearly was, on the face of the Originating Application, the question of unlawful deduction raised.
32. In those circumstances and bearing in mind that the other matters are going forward, it seems to us that these are quite capable of being argued with a reasonable prospect of success; and that we ought to exercise our discretion to allow the Notice of Appeal to be amended, notwithstanding the fact that this matter is out of time, so that the matters can be heard on this appeal. We will therefore allow an amendment and extend the time in respect of those two points.
33. This is a matter that we would regard as being in listing Category C. We would think it is a matter that should have attached to it a time estimate of half a day.
34. The Tribunal will then make the following orders. That the Notice of Appeal be amended as follows. That an additional ground be added to ground 1 to be numbered 1A and to read "the Employment Tribunal improperly prevented Miss Mears from calling evidence on the question whether or not the Respondents would have been willing to supply a reference.
35. Ground 3 will be amended by deleting the words "seriously entertain" and replacing them with "consider at all or give reasons for refusing."
36. There will be an additional ground 4 allowed by way of amendment. It will read:

The Tribunal failed to consider or adjudicate upon the questions of:

(1) what if any payment for outstanding holiday entitlement is due to the Appellant

(2) what if any unlawful deductions from wages were made and, if so, what compensation is due to the Appellant.

37. Second, the Appellant is to lodge with the Tribunal and serve on the Respondents amended grounds of appeal, set out in the usual form of amendments being in red and words struck out being struck through with a red line. That is to be done within 21 days of today.
38. Third, the appeal will go forward to a full hearing.
39. Fourth, it will be assigned Category C.
40. Fifth, the Appellant is to lodge with the Tribunal a witness statement setting out full particulars of all facts and matters relied upon in support of the allegations or contentions at paragraphs 1A, 2, 3 and 4 of the amended Notice of Appeal. That is to be done within 42 days of today.
41. Sixth, any further witness statements from others in support of the Appellant's appeal in respect of paragraphs 1A, 2, 3 and 4 of the Notice of Appeal should be lodged within the same period.
42. Seventh, this Tribunal having provided copies of witness statements received from or on behalf of the Appellant to the Respondent, the Respondent to lodge a witness statement or witness statements in reply within 42 days thereafter.
43. Eighth, having provided copies of witness statements from the Appellant or provided by the Appellant and from the Respondent or provided by the Respondent, to the Chairman of the Tribunal, the Chairman and the lay members of the Tribunal to be at liberty to make their own comments on that documentary material within 42 days of receipt by them of that material.
44. Ninth, the parties to this appeal to be at liberty to apply for further directions within a period of 42 days after receipt by them of any comments made by the Chairman of the Tribunal and members of the Tribunal.
45. Tenth, the Appellant and the Respondent to be provided with a transcript of the judgment today without cost to themselves.
46. Reading paragraph 11 of the Practice Direction with Facey, it would seem to me the position is that the Chairman and members are at liberty not to make comments if they do not wish to do so.