Marconi Communication Systems Ltd v Leeney [1991] UKEAT 140_90_1911

EAT

Marconi Communication Systems Ltd v Leeney

[1991] UKEAT 140_90_1911 · 1991-11-19

MR JUSTICE TUCKER : These are employer's Appeals from a decision of the Industrial Tribunal held at Bury St Edmunds given on 24 August 1989 and from a review of that Decision undertaken on 14 and 29 November 1989. There had been an earlier hearing on 17 February 1989 whereby the Tribunal decided that the Applicant, the Respondent to these Appeals, had been unfairly dismissed. No Appeal is brought against that part of the Tribunal's decision.

The grounds of the Appeals are these: that in assessing the compensation payable to Mr Leeney following the Decision that he was unfairly dismissed, the Tribunal made assumptions about the actions that would have been taken by the Appellant in purely hypothetical circumstances. This had the affect of grossly inflating his loss through his dismissal and the Appellants' grounds of Appeal are stated in the notice as being set out in their letter of 19 September 1989 addressed to the Secretary of the Tribunals of Bury St Edmonds. That letter is a very detailed letter, suffice it to say that it contains the allegation that the company would not have contemplated a severance payment, there would have been no grounds for such a payment.

The history of these proceedings is as follows. On 17 February 1989 the Industrial Tribunal held a hearing on the question of liability. That decision was reached and promulgated on 21 February. The proceedings were then adjourned in order to see if agreement could be reached on the question of compensation. No such agreement was reached and accordingly on 24 August the Tribunal held a hearing on that question of compensation and at the end of it they made an award to the Respondent in the sum of £11,862.

On 19 September there was an application to the Tribunal by the Appellants for a review. The letter requesting that review is the one already referred to. On 16 October the Appellants served their Notice of Appeal. On 14 and 29 November the Tribunal held a review of its previous decision. This resulted in a reduced award to the Respondent in the sum of £9,306.91. That decision was promulgated on 18 December. On 25 January 1990 the Appellants made a request to the Registrar of this Tribunal to proceed with the Appeal. On 8 March the Appellants requested the Registrar to amend their Notice so as to make it relate to the review decision. On 12 March the Respondent served his answers to the Notice of Appeal. The Respondent was content with the original award but he cross-appeals against the review decision and seeks reinstatement of the original award. The grounds of his cross-appeal are that the calculations made in the review were wrong in law, though he does not condescend to particulars of that assertion and he did not at that stage suggest that the review should not have taken place. But during the hearing of the Appeal, application was made to amend the Notice to include that assertion. It was not objected to by the Appellants and we allowed that amendment to be made. Finally, on 14 May 1990 came the Appellants' reply to the cross-appeal on grounds that the Tribunal's original decision was wrong in law.

There is no dispute about the facts giving rise to these Appeals. They are well set out by the Tribunal in the Reasons for its original decision and it is unnecessary to recite them. In opening this Appeal Mr Seaton, on the Appellants' behalf, we think over-optimistically described the issue as a "simple" one. It concerns the correct assessment of the amount of the compensatory award under the provisions of section 74 of the Employment Protection (Consolidation) Act 1978, Sub-section 1 of which is in these terms:

"Subject to sections 75 and 76, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

In substance, the Appellants contend that the Tribunal made a mistake in awarding the loss for future earnings under two headings which resulted in a wrongly inflated award. The burden is upon the Appellants of showing that the Tribunal was wrong in its approach and that either the Tribunal was wrong in law, or that their findings of fact were perverse. It is under the latter heading that the Appellants have chosen to proceed.

The Appellants have helpfully set out the different calculations at pages 3,4 and 5 of the second bundle of documents which are before us, those calculations being those of the original decision, those of the review decision and of the Appellants' own contentions respectively.

The dispute centres on the awards made by the Tribunal in the original decision of £10,553.55 as severance payment assumed payable and in the review of £6,000 loss of future earnings in addition to the loss of 6 month's earnings already made of £5,670. The Appellants' submission is that this element of £6,000 future loss was introduced by the Tribunal in an effort to reach an equitable solution when it realised that the original award had been miscalculated and that an award for severance payment could not be justified.

It is submitted by the Appellants that the Tribunal fell into fundamental error in overlooking, when it came to review their decision, that they had already made an award for future loss and that there has been an element of double compensation accordingly. The Appellants do not advance any particular argument against the method by which the sum of £6,000 was calculated but they say simply that it should not be awarded in addition to the sum of £5,670.

Mr Couch for the Respondent draws attention to the sequence of events. The Respondent was dismissed from the Appellants' employment on 24 November 1988. He was paid three month's salary in lieu of notice which took him to 24 February 1989. This was just after the first hearing on liability at which time he was still unemployed. Unfortunately the Respondent's wife had become seriously ill and he had to look after her. That is one of the factors which the Tribunal had to take into account when considering the very difficult problem of just and equitable compensation. By the time of the original award ie 24 August 1989, exactly 6 months had passed since the expiration of the notice period and it seems to us that it was perfectly open to the Tribunal to award the Respondent compensation for his loss of earnings up to that date. This is what they did. They made an award on the basis of 6 months loss to date, see para 16 of their Reasons.

We agree that the Tribunal's method in making that calculation and the words which they use to describe it are not entirely free from doubt, but we think that this is what they set out to achieve. It is unfortunate that they made a mistake in para 11 by saying that the date of the original decision was 17 April whereas it should have been stated as 17 February and that they made another mistake in para 12 by referring to "future loss". It was not future loss at all but past loss, loss to date, and that is what has given rise to confusion and to a misapprehension on the part of the Appellants as to the nature of the subsequent award.

Whether it was wise of the Tribunal to accede to a request to review their decision we rather doubt. Unless there has been an obvious mistake or miscalculation it might be better to leave the aggrieved party to his remedy by way of Appeal to the Employment Appeal Tribunal. And where as here he has already served the Notice of Appeal, he should, in our view, be required to elect for the procedure which he prefers to adopt. But the Tribunal did agree to undertake a review in this case and we cannot say they were wrong in law to do so. We are not persuaded by Mr Couch that the Appellants are now estopped from pursuing their right of Appeal.

Accordingly we examined the decision reached on review in the light of the comments which we have already made as to how we interpret the Tribunal's original award and method by which they calculated it. It seems clear from para 10 of the later Decision that the Tribunal were concerned about the problem of quantifying future loss. They rightly concluded that there is no exact way of computing this, and they made an attempt to do so on the basis which neither party criticises. Having done so the Tribunal came to the conclusion that the just and equitable amount to award for future loss, in accordance with section 74(1) would be a lump sum of £6,000.

For reasons which we have endeavoured to express, we are not persuaded by Mr Seaton that there has been an overlap here. By the time the Tribunal came to review their decision the Respondent had been out of work for almost exactly 12 months. Excluding the 3 months for which he had received payment in lieu of notice, that leaves 9 months. The Tribunal had compensated him for 6 of these in their original award. It does not seem to us to be either unjust or inequitable that he should be compensated for the remaining period which had elapsed before the review hearing and for a reasonable future period thereafter.

The Appellants' contention is that the sum of £6,000 roughly equates to 6 month's working period. So be it. If the Respondent is awarded a sum however described, to compensate for only 3 months future loss from November 1989 we cannot see that the Appellants can complain. Although as we have said, the Tribunal's decision might have been more happily and clearly worded, we are certainly not persuaded that they, and in particular on the occasion of the review decision, were fundamentally wrong let alone perverse. Accordingly the Appeal and the Cross-Appeal are dismissed and the decision taken on review must stand.