RSPCA (Derby) v Rollinson [1991] UKEAT 204_90_1109

EAT
RSPCA (Derby) v Rollinson
[1991] UKEAT 204_90_1109 · 1991-09-11
MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 19th December 1988, Mrs Rollinson applied for remedies under the Employment Protection (Consolidation) Act 1978 on the basis of unfair dismissal.The Respondents were was the Derby Branch of the RSPCA and Mrs Rollinson was involved in running the home for sick and damaged animals.The first Hearing occurred on the 3rd March; it continued 4th May 1989, at the end of which a Decision was reached that she had been unfairly dismissed.The Decision ranges over a number of pages, it gives a long history of friction between Mrs Rollinson and the local Committee. She had received two warnings one in 1985 and one in 1987, in connection with her conduct. She and the Committee disagreed about the way this particular home was being run. Ultimately she was dismissed and it was found that the dismissal was unfair on procedural grounds. At the end of that Decision, which was promulgated on the 11th July 1989, the paragraph reads thus:
"Our decision as to liability and contributory fault, was made clear to the parties on the day of the hearing."
the contributory fault, we pause to say, was 50%.
"As they then indicated that, in the light of this information, agreement might be reached on figures the hearing was adjourned. No application was made for costs nor do we feel this to be an appropriate case for the exercise of our discretion to make an order for costs against either party."
Apart from that written Decision, at the Hearing itself, there had been an indication that when compensation was considered there would be a cut off date at the age of 60.The Solicitors for the Respondents wanted that confirmed in writing. As a result they wrote to the Industrial Tribunal and by a note of the 10th August 1989 the learned Chairman on his own writing paper, not on Industrial Tribunal writing paper, wrote saying this:

"Case 00297/89

It is confirmed that if the Tribunal were asked to assess compensation no continuing loss would be awarded over the applicant's 60th birthday, this being the normal retiring age.

This was stated orally at the hearing."

(Signed) S J Pacey

Chairman"

When the negotiations were taking place, it is clear from the documentation that the RSPCA were negotiating and putting forward figures on the basis of age 60 whereas the trade union acting for Mrs Rollinson were putting their figures forward on the basis of age 65. Thus, when the matter came back before the Industrial Tribunal in February 1990 there was an issue between the two of them, and of course the Solicitor appearing for the RSPCA took the point that this matter had been decided and that age 60 was the appropriate age.The Tribunal took the view that their earlier letter and oral statement were only indications of the Tribunal's thinking and were not a "reasoned" and "promulgated" decision, indeed, the learned Chairman invited Mr Lear, who was appearing for the Applicant, to apply for a Review. Mr Lear did so, there was a Review and the Tribunal decided that 60 was not the appropriate age; they decided that the appropriate cut-off was at the age of 63 and awarded compensation accordingly.The matter is now before this Court and we are grateful to Mrs Andrew for the succinct and careful way in which she has put forward her submissions. She takes a number of points in the following order.First, she submits that the letter of the 10th August 1989, was a Decision; secondly, that it was a binding Decision, because although not entered on the register that was merely an administrative step and therefore it was something that "stood" in the absence of an Appeal; thirdly that there was no power to Review as had been purported to be done by the Industrial Tribunal. Then her fourth and fifth points concern the actual substance of the Decision itself. She submits that it was perverse in that there was no evidence which could support the assumption made that the Applicant would stay on until age 63; lastly, she criticised the way in which the Industrial Tribunal dealt with the issue of mitigation.The first issue therefore was is this a "decision"? A "decision" for the purposes of the rules and the procedure before Industrial Tribunals is defined in the Statutory Instrument which has the Rules in a Schedule, that is the "Industrial Tribunals (Rules of Procedure) Regulations 1985, (Statutory Instrument 1985 No.16)". In Regulation 2 a "decision" is defined as follows:
"in relation to a tribunal includes a declaration, an order (other than an interlocutory order), a recommendation or an award of the tribunal but does not include an opinion given pursuant to a pre-hearing assessment held under Rules 6;"
and it is submitted that this is a "declaration", or possibly a "recommendation".This problem has been faced in a number of authorities to which we were referred. It is right that in those authorities the decisions, which were held to be "decisions", were not quite of a similar nature to that with which we are faced in the present case. The earliest authority was Jowett v. Earl of Bradford 1977 ICR 342 and in that case there had been an indication - there was an oral finding - that there had been an unfair dismissal. The problem there was whether a second Hearing was a valid Hearing.The next case to which we referred was Hanks v. Ace High Productions Ltd. 1978 ICR 1155. Hanks is rather different in that this was a case in which the learned Chairman had wished to recall the parties in order to consider an authority which he had found subsequent to the Decision.Then there is the case decided recently in this Court Springrove Services Group plc v. Higginbottom 1990 ICR 111, that was a "Decision" again but the complaint was dismissed.Finally, Casella London Ltd v. Banai 1990 ICR 215, and that was a question of an Interlocutory Order and a "striking out".Those cases all involved decisions in the sense that an issue that was relevant to the rights and liabilities under the Employment Protection (Consolidation) Act 1978, was decided. There is one other case where the facts were closer to the facts of this case. That is Arthur Guinness Son & Co (Great Britain) Ltd v. Green [1989] ICR 241. That was a Decision of this Court presided over by Mr

Justice Garland, and the head note in that case reads:

"On the 4 September 1987, the employee was dismissed and he subsequently made a complaint of unfair dismissal. On the 29 March 1988, an industrial tribunal heard argument on liability and before the issue of compensation was considered, they gave an oral decision that the dismissal was unfair. As a result of the evidence given at the hearing counsel for the employers asked for a ruling from the tribunal as to the period after which the employee could have been fairly dismissed in order to establish the appropriate period for calculating compensation. The tribunal made an oral ruling that he could have been fairly dismissed six months from his dismissal and counsel made their submissions on compensation based on that period. When the written reasons were promulgated the award was based on a longer period. The tribunal rejected the employers' application for a review holding that the written decision of the industrial tribunal was the authoritative decision.
The appeal was allowed, and it was held by this Court that industrial Tribunal had given two oral decisions, one at the end of the hearing on liability the other at the end of submissions as to the relevant cut-off date for the purposes of calculating compensation; that when the industrial tribunal had recorded their decision and the reasons for it, they had departed from the oral decision previously given and the oral decision had to stand unless the tribunal were purporting to recall their previous decision; but the Tribunal had gone beyond any permissible jurisdiction to recall for correcting of error or omission and accordingly, the oral decision for compensation should be calculated on the basis that the employee could have been fairly dismissed six months after his dismissal would be effective."The distinction between that case and the present case is twofold; first, in the Arthur Guinness case evidence had been called upon which the decision was based that the cut-off point was six months after the date of dismissal; secondly, there had been submissions from both sides; so neither party was taken by surprise, and the decision was reached after evidence called, and asked after submissions. That is not so in the present case. Before leaving the Arthur Guinness case we would draw attention to the passage in the Judgment of Mr

Justice Garland at page 246 just below "A", where he says:

"Before turning to the next short point, we would like to emphasise that the practice of deciding issues step by step is much to be encouraged. It does, however, require attention to be paid to rule 9(2) of Schedule 1; the chairman should simply record the decision in his notebook with the concurrence of the parties and sign it. If this had been done in the present case either of the parties would have realised that they were not ad idem with the chairman or alternatively, the chairman would have had a clear contemporary record of what the tribunal had in fact decided."
We would support the indication there given that it may be extremely helpful in the tribunal procedure, which can be fairly "free", for indications to be given from time to time to assist parties to come to an accommodation. But we would stress that it is vitally important but if those "guides" or "guidelines" or "advice" is to be given it should clearly be stated that this is not intended as a binding decision.Now in the present case the form of the wording from the letter of the learned Chairman is that:

"no continuing loss would be awarded over the applicant's 60th birthday"

that wording is unfortunate; there was no evidence upon which that decision could be reached; there had been no argument upon which it was based, and if that had been appealed there was simply no basis upon which that appeal could have been opposed. It seems to us therefore, that in the light of that comment, that letter must be considered to be a "guide" and not a "decision" as such.We appreciate the approach of the RSPCA that they took it to be a decision, and indeed it might appear that that was so. However, looking at the matter as a whole we have reached the conclusion that the proper interpretation of the situation as it occurred was that this was merely a guide to the parties. For the future however, we would urge Chairmen to make it abundantly clear, if they are going to try to help the parties in making comments, that those comments should be strictly comments noted in their notebooks, as Mr Justice Garland has indicated, only as comments, saying that it is made without hearing evidence and without hearing submissions so that there can be no misunderstanding whatsoever, for the parties going away that they are free to bargain, but if they come back it may be that that is an indication of what the tribunal "might" decide; but of course it does not bind itself and it will hear evidence and submissions and may come to a contrary conclusion. If it is helpful to them then in the ordinary tribunal procedure we think that that is something that can usefully be done.It follows of course from that, that Mrs Andrew fails on her first point and therefore there was no "decision" which could have been the subject of a Review, however, if there had been a decision we are not satisfied that it could have been dealt with in the way it was dealt with by this Tribunal by way of a Review. The time limits are strict and there have been no extension of time whatsoever. We reject the submission that a letter from the trade union was an application for a Review.That leaves us therefore, with the last two points of criticism made by Mrs Andrew, the first is as to perversity; the second mitigation.The nub of the reasoning which is criticised is contained in paragraph 5 of the Decision of February 1990, and the whole of the paragraph is relevant. It reads thus:
"So far as concerns the compensatory aware, in the 22 weeks from the effective date of termination to the last hearing date the net loss was £87.00 per week making a total of £1,914.00, less 50% equals £957.00 and this is the prescribed element. This figure, is however, only part of the overall compensatory loss since argument has been advanced on behalf of Mrs Rollinson that she would have retired at age 65 (or possibly even later) and that her mortgage would not be paid off until she attained the age of 63. We have heard no convincing evidence from the respondents that Mrs Rollinson would not have stayed on until age 65 and in our judgement we think it realistic to assume she would have stayed on until at least her mortgage had been paid off at age 63. In our judgement no differentiation should be made, in assessing contributory loss, between the retirement ages of men and women. In view of Mrs Rollinson's age and work experience we consider that the realistic chances of her obtaining employment before she attains this age are virtually nil."
On the issue of perversity as to the relevant age, it is submitted that there was no evidence, and in the light of the recent Decision in the House of Lords in Piggott it really means that there must be no evidence upon which the Industrial Tribunal could find that it would be realistic to assume that she would have stayed on until at least her mortgage was paid off at the age of 63.The evidence is balanced, some points each way, but there does not seem any clear evidence as to a policy, nor indeed any stated retirement age as would be indicated under Section 64(1), the "normal retiring age" of the 1978 Act. The Tribunal therefore, were left to find an age and to do it as best they could, taking a broad look view. The cynic might say that they picked a date somewhere between 60 and 65, the two ages being advanced, but there is some logic in the fact that they took the age of 63, because it was by that age that Mrs Rollinson's mortgage would have been paid off.On the issue of mitigation it is said that they should have plumped for an age, but they looked at this matter and they found that with her experience and age there was no chance of her obtaining other employment.Those are essentially matters for the Industrial Tribunal, it is not for us, we might have found something differently; we might have laid greater stress on the conduct which had been found against her, but those were all matters before the Industrial Tribunal and we cannot find that they erred in law in a perverse finding, or in failing to consider the issue of mitigation.It follows therefore, from the reasons which we have given, that this Appeal must be dismissed and it is.