Pitman v Drake & Scull Engineering Ltd [1992] UKEAT 103_90_1302

EAT
Pitman v Drake & Scull Engineering Ltd
[1992] UKEAT 103_90_1302 · 1992-02-13
MR JUSTICE PILL: This is an Appeal by Mr A G Pitman against a Decision of the Industrial Tribunal sitting at Plymouth under the Chairmanship of Mr B E Walton, on the 14th November 1989 whereby, they held unanimously that he had been unfairly dismissed. On the face of it that is an odd situation because he was successful before the Tribunal but the reason for his Appeal will become clear.He was employed by Drake & Scull Engineering Ltd, who are a national engineering Company specialising in providing services in new and refurbished building. He was employed in the Plumbing Department.In a carefully reasoned Decision the Tribunal considered the history of his employment. They found at paragraph 44 that the employers were obliged to explore certain possibilities more fully before allowing a notice of termination to expire. They considered the question of redundancy which had arisen and they held that in the circumstances the dismissal was unfair. They also noted at paragraph 48 as follows:
"Mr Pitman also has a dispute over the period of his notice. He maintains that he should have been given another three months' notice as a Technical Grade Plumber. We do not accept that argument. He was entitled to twelve weeks' notice and that was given on 5 May 1989."
In his written application to the Tribunal he had stated that:
"an extension of that notice of 1 week, this I consider to be improper and invalid, I believe 3 months' notice should have been the least or pay in lieu."
We have considered the Notice of Appeal. Mr Pitman appears in person.The respondents are represented by Mr D W Frost, their Regional Appeal Officer who also appeared before the Industrial Tribunal.Before dealing with the grounds of the appeal we need to make two other preliminary observations. The first is that one matter was left open by the Industrial Tribunal; they deal with it at paragraphs 49-51. It involved a question of downgrading and it was left open because there was a case proceeding before this Tribunal, which the Industrial Tribunal clearly thought might be relevant to the issue between the parties. We do not know what that decision was, or indeed the precise point at issue but we are told by both Mr Pitman and Mr Frost that that is a "dead" issue and we need not trouble ourselves with it.The second preliminary point is that following the service of the Notice of Appeal, the assessment of compensation following the Tribunal's Decision, went on to be heard by that Tribunal on the 20th March 1990 and in another carefully worded Decision the Tribunal unanimously found that compensation should be awarded in the sum £2,869.91.Mr Pitman's Appeal to this Tribunal is on the ground that even though they found he was unfairly dismissed the Tribunal ought also to have held that he was not given proper notice. There was a reference to lack of notice in the Notice of Application to the Tribunal. However, the point which Mr Pitman now wishes to take is that on the basis of three letters, which we are told were also in the bundle before the Tribunal, the employers failed to give him the three months' notice to which he was entitled. We do not propose to read the letters in full but the first point made is that the notice originally given on the 5th May 1989, was extended first orally, and then by letter of the 28th July 1989, and that there is no power in law unilaterally to extend a period of notice. A further point is taken that the letter of dismissal of the 7th August was written only after the termination date upon which the Company rely, namely the 4th August 1989.We say immediately, we see no merit in the second point. The letter of the 7th August merely confirmed what had been said earlier and the real issue is as to the effect of the letter of 28th July. Mr Pitman submits that because the employers sought unilaterally to vary the period of notice, a further full twelve week period of notice ought to have been given and because it was not given he is entitled to wages in lieu of notice.Mr Frost first submits that if these points were to be taken they ought to have been taken before the Tribunal. Mr Pitman refers to the notice of application. We are not satisfied, on balance of probabilities, that the points now taken were in fact taken before the Tribunal. A point that undoubtedly was taken is that because of his re-grading during the period of notice he was entitled to a fresh period. In paragraph 48, which we have read, the Tribunal dealt with that point in a manner in which they were entitled to deal with it and we would not consider it right to intervene. We do not accept that the present points upon the letters and the alleged variation of notice were squarely taken before the Tribunal. However, equally we have no doubt that with the help of Mr Pitman and Mr Frost the Tribunal well understood what was happening, and that has been confirmed by Mr Pitman this morning. He had received a number of redundancy notices. The employers always hoped that they would not take effect and sought in their own interests, as well as employee's, to obtain additional or alternative work during the period of notice. It was common ground and Mr Pitman's union were much involved in the arrangements which were made so that, if possible, notices would not take effect. It was hoped, and indeed on previous occasions, it had happened that before the notice took effect work was available for Mr Pitman and no doubt other employees. Mr Pitman seeks to rely upon that history. He says that he received many previous letters of redundancy, indeed he showed a bundle of them to us, and he said he had no reason to take this one seriously. He says that during the period of notice, and certainly during the additional week of notice which the employers purported to give, he was waiting at home for further orders from them.We find nothing wrong in the practice followed by the employers in consultation with the union. That is not an issue which is directly before us, and may not have even been directly before the Tribunal, but this was an arrangement which was in the interests of both parties. If there were points of fact to be decided upon it, they were points to be decided by the Industrial Tribunal. If the point was sufficiently taken, and I have indicated that we do not accept that it was, then it would have been open to the Tribunal to find, and indeed on the material before us we would be inclined to find, that the extension of notice was something which in the interests of all parties was done by consent. We accept entirely, when Mr Pitman says that he himself did not expressly consent to it. But he has mentioned the involvement of his union and had this matter been ventilated and investigated at the hearing before the Industrial Tribunal, the finding would have been, in our view on the material we have, that by custom in the industry the extension of period of notice was done by consent, and if that is so Mr Pitman could have no complaint, or no right to require a further three months period of notice.The matter does not however end there. We do not accept that events having taken the course which they have, it is open now to Mr Pitman to take the point he seeks to take before this Tribunal. He allowed the matter of compensation to be heard by the Industrial Tribunal and they made an award. It would not be right, in our view, that he should now in effect attempt to set aside that award or to challenge that award by reason of an appeal on the question of notice which he seeks to make to this Tribunal.It does not end even there. We have in the course of the hearing been given a copy of the Tribunal's Decision on the question of compensation and Mr Pitman received a basic award, in accordance with law. That was in a modest sum. The Tribunal then went on to make a compensatory award to which Mr Pitman was, in the circumstances, entitled. They noted that he had built up his own business and that by the beginning of December of the relevant year, 1989, there was no continuing loss. Further, they awarded him his loss during the period from the 4th August to the 1st December, a period of 17 weeks. That of course, includes within it, the period of 12 weeks' notice to which Mr Pitman now claims to be entitled. It would not have been open to the Tribunal, and whatever view we took of the merits of his case it would not be open to us, or on remission, to the Industrial Tribunal to make a double award for that period. They could not first to order the sum by way of compensation and second order a sum for the same period by way of damages in lieu of notice.Mr Pitman says he comes before us as a matter of principle. He has a right of appeal which he has exercised. However, we find no merit, and our Decision is unanimous, in the grounds which he advances. The Appeal is dismissed.