Blackburn (t/a Harthill Bakery) v Dowker [1993] UKEAT 193_91_0103

EAT
Blackburn (t/a Harthill Bakery) v Dowker
[1993] UKEAT 193_91_0103 · 1993-03-01

JUDGE HARGROVE OBE QC :

The Industrial Tribunal held that the Respondent was unfairly dismissed and made an order which included a compensation award amounting to £2,013. an allowance having been made of some 15%.It is against the question of quantum that this appeal is aimed. What seems to have occurred is that until the Appellant took over the business in February 1990 the Respondent's earnings were always of the order of £48 per week. The Appellant required the Respondent to work longer hours with her earnings increased to between £80 and £90 per week. That continued for a period of eight weeks until the date of her dismissal.The Tribunal computed the weeks' earnings by taking the last twelve weeks' earnings. That is four weeks at the lower rate and eight weeks at the higher rate. They reached a figure of £74.17. The Tribunal set out their reasons in this way.
"The compensatory award has presented some difficulty. At the time when the applicant was dismissed by the respondent she was earning a figure of £74.17 per week by averaging out the sum she received. She had been working hours which were greater than she would normally wish to work but this she had been doing in the period while Mr Blackburn was the proprietor of the business in the last 8 weeks or so of her employment; and there is no evidence to satisfy us that this would not have continued for a considerable time at any rate had she not been dismissed. We now know that the applicant looked for other work following dismissal. She wanted work of about 25 hours per week and eventually she obtained a job with a cleaning company which she started at the beginning of July 1990 at a wage substantially lower than that she had been receiving with the respondent.
We are satisfied that the first part of the compensatory award should reflect total loss at the rate of £74.17 per week for the period between the date of dismissal and the 5 July 1990. That was 14 weeks and is quantified in the sum of £1,038."We are of the view that there were adequate facts on which the Tribunal were entitled to rely in reaching that conclusion.The next area attacked is the compensation for the difference between what she was earning and the salary she received in her new job has been miscalculated. That again was dealt with by the Tribunal in this way:
"Thereafter it is claimed that the applicant should have compensation for loss awarded to her in respect of the fact that she had to accept work for 20 hours a week when she wanted 25 hours per week, that the rate of pay instead of having been £2.50 per hour was £2.10 per hour. Taking these basic statistics into account it shows that the claim is for a continuing loss after 5 July of £20.50 per week. Having regard to the applicant's situation, her wish in respect of what she should do and the work she has been able to obtain, we are prepared to accept that figure of loss for such time as seems to us to be just.
We have in mind that the applicant could not necessarily be expected to continue working the longer hours, as she was doing with Mr Blackburn indefinitely. She clearly was looking for 25 hours per week. It might have been that, had she worked with Mr Blackburn for a period after the date when she was actually dismissed, she would have sought other work which was more to her wish than what she had been obliged to do in the service of Mr Blackburn. Her employment might have come to an end not only because of her own voluntary resignation on finding other employment; but it might have come to an end for all manner of reasons which one can only speculate about."We have considered that aspect and again it is quite clear that there is ample evidence upon which the Tribunal was entitled to form that view of fact. It will be noted that in making these awards the Tribunal has not deducted any sum in relation to income tax or national insurance and it is put before us that that is an error of law which ought to be rectified. We accept that on the authority of Norton Tool v Tewson [1973] ICR 501 and Scottish Co-operative v Lloyd [1973] IRLR 93 that there should normally be a deduction because section 74 of the Act requires computation of loss but here the Respondent's wages were paid without deduction. The reason was that the employer believed the Respondent was self-employed. At one stage it seemed to me that there might be a difficulty in that case, if tax was due, in saying that tax should have been taken into account and was not but that point does not arise here. It is quite clear that no tax was due upon the year in which she was working for Mr Blackburn and it now appears that no tax was collectible upon the following year either. We were invited at one stage to contemplate whether we should not have placed ourselves in the place of the Tribunal who ought to have foreseen that there would be tax due. We do not consider that that is an appropriate way of approaching the matter and on this point the appeal also fails.With regard to national insurance it is plain that no sums were deducted. The same argument applying in relation to this as in relation to tax from the point of view of the employer. We are told that the Department of Social Security has decided not to recover any sums that might be due. Should the Tribunal therefore have made a calculation to deal with this matter? The sum involved is small. It is essential to bear in mind that Tribunals cannot be expected to carry out the type of calculation which an accountant will execute. The point is put succinctly in Les Ambassadeurs Club v Bainda [1982] IRLR 5, at page 7:
"We have come to the conclusion that in a case such as the present, where it is important that the calculations of compensation should be kept simple and that the figures should be looked at in a broad way, as the Industrial Tribunal did, an unnecessary complication should not be introduced. Accordingly we see no reason to interfere with the award of the Industrial Tribunal on that basis."
We agree that a broad brush approach here was taken by the Tribunal and that is a perfectly acceptable approach. On that basis we can find no fault with the decision on either fact or law in this case and this appeal is dismissed. This is a unanimous decision of the Tribunal.Although this was an appeal with very little merit even upon the papers and although we think that careful consideration of papers would have disclosed the income tax point at an early stage, we do not consider it to be the sort of conduct which could be called unreasonable and we shall refuse the application for costs.