M P Burke Plc v Harrison [1991] UKEAT 215_90_2611

EAT

M P Burke Plc v Harrison

[1991] UKEAT 215_90_2611 · 1991-11-26

MR JUSTICE TUCKER : This is an employer's Appeal from a decision of the Industrial Tribunal held at Leeds on 8 September 1989 whereby the Appellants were ordered to pay to the Applicant, (the Respondent to this Appeal), the sum of £3,978 compensation. The Tribunal had at an earlier hearing found that the Respondent had been unfairly dismissed but that he had by his conduct contributed 40% to his dismissal. There is no appeal from the finding of unfair dismissal but depending upon the outcome of the present appeal, the Respondent seeks to Cross-appeal on the question of the proportion by which the award was reduced.

The grounds of the present Appeal are that the Tribunal erred in assessing the quantum of compensation on the basis that the appropriate figure for average take-home pay was £210.

That was the approximate figure which the Respondent had set out in his Originating Application and which the Appellants in their Notice of Appearance accepted as being correct. When the matter came before the Industrial Tribunal the Appellants were represented by Counsel who apologised for the fact that regrettably he had had no contact with those instructing him. He had no witnesses whom he could call and the only documents upon which he could rely were photocopies of a number of pay slips showing what the Respondent had earned in the last 12 weeks immediately before his dismissal.

In the Full Reasons which the Tribunal gave for their Decision, they set out their approach to such evidence as was before them. They observed the concession as to the wage contended for in the Originating Application. They aptly observed that if at the time of the dismissal the Appellants saw it differently they should have said so in the Notice of Appearance. There was no application to amend that notice. But the Tribunal did not proceed solely on that concession. They heard evidence from the Respondent and they carefully examined what the true position was. They said this:

"..In October the applicant returned from holiday to find he had been transferred to other premises and engaged on only a 39 hour week. Then he received less pay than before and it is upon that amount that the respondents argue, without adducing any evidence as to the way in which the reduction took place, that that lesser sum should form the basis of the assessment of weekly net pay. In December a letter had been written to the applicant which said in effect:

"You are to be kept to 30 hours until your attitude and standard improve."

The respondents seek to say that that is evidence on which we should find that the sum of £210 is wrong. Photocopied pay-slips were put to the applicant in cross-examination which showed that his take-home pay was less than in earlier weeks. The respondents argue that we should take that lower figure. If the figure of £210 is going to be proved to be false it seems to us that there must be clear evidence of an agreed change in contractual terms, either express or implied, which gave rise to the reduction in pay."

As it happened, the Chairman of the Industrial Tribunal was very familiar with the old case of SAXTON & OTHERS v NATIONAL COALBOARD [1970] Vol 5 IRLR 196 in which the Chairman had appeared as Junior Counsel. He made reference to that case not as an authority, but as a case for comparison. Although that case was concerned with redundancy it was an appropriate case to refer to and is in accordance with the later case decided by this Tribunal that of KINZLEY v MINORIES FINANCE LTD

[1988] ICR 113

Despite the valiant efforts made by Miss McCartney on the Appellants' behalf we regret to say that we see nothing in this Appeal. The Tribunal were perfectly entitled to find as they did, and would have been wrong to decide otherwise. It is quite impossible to find any valid criticism which could be made against their decision or the manner in which they reached it. There was overwhelming evidence for them to find as they did ie, that the correct figure to adopt for the Respondent's earnings was the figure of £210 per week. They were correct to find that there was no evidence of any agreement to accept a lesser wage. The figure of £210 per week was a just and equitable figure to adopt.

In our view the Tribunal dealt perfectly adequately with the Respondent's efforts to mitigate his loss and also with the questions of future loss and the length of time for which the Respondent would, if not dismissed, have remained with the Appellants. All these matters were admirably dealt with in the Reasons. Therefore this Appeal will be dismissed.