Borsey v Liberty Distribution Ltd [1993] UKEAT 49_92_1101

EAT

Borsey v Liberty Distribution Ltd

[1993] UKEAT 49_92_1101 · 1993-01-11

JUDGE LEVY QC :

This is an appeal by Mrs Margaret Borsey from a decision of an Industrial Tribunal which was made on 18 November 1991, the decision having been communicated on 9 December 1991.

In essence Mrs Borsey had been employed by Liberty in London; she, by consent was transferred to work at Liberty Distribution in Burnley where ultimately on 14 February 1991 she was made redundant. She applied to the Industrial Tribunal for compensation for unfair dismissal on 9 April 1991. There were two hearings before the Tribunal; the first on 4 September 1991 and the second on 18 November 1991. At the conclusion of the first day of the hearing the Tribunal had apparently indicated to the parties that they thought the consultancy procedure had not been properly gone into and they expressed the hope that the parties would agree terms whereby Mrs Borsey would be re-engaged. Unhappily that did not happen and the adjourned hearing was held on 18 November which resulted in a decision from which this appeal has been made.

We turn to the Notice of Appeal which states at paragraph 3 having said that the Appellant was unfairly dismissed, decided:

"(a)it was not reasonably practicable for the respondent to re-engage the appellant; and (b)having decided to award the appellant compensation, awarded her £2,607.69"

It was apparent that very shortly after the decision had been made that the arithmetical calculations had been made wrongly. That was conceded by the Respondents to the Appeal, the employers and that figure was adjusted to £3,024.93.

(b) So far as 3(a) is concerned the Notice of Appeal reads:

"The grounds upon which this appeal is brought are that the industrial tribunal erred in law in that:-

(1) Upon decision 3(a) above, whether there was any, or any sufficient evidence upon which the tribunal could make this finding, [that is that is was not reasonably practicable for the Respondent to engage the appellant] or alternatively that this finding was perverse"

We have had a skilled argument from Mr Jones on this point but we are satisfied that that was the evidence on which the Tribunal could make this finding, alternatively that it was not perverse. Having regard to Mr Jones' argument we should perhaps refer to Port of London Authority v Payne

[1993] ICR 30

. Mr Jones has suggested to us that as regards the re-engagement provisions there has to be a two-stage hearing and he suggests that this was not gone into in this particular case. Having looked closely at the decision of the Tribunal we are not satisfied that there was not the two-stage hearing which Mr Jones says was absent. Alternatively we are satisfied that the Industrial Tribunal found that it was not reasonably practicable for the Respondents to re-engage the Appellant and therefore it was proper for the Industrial Tribunal not to give her the opportunity to seek re-engagement which Mr Jones says she was denied.

We turn to the second section of Grounds of Appeal which are found in paragraph 6 of the Notice of Appeal. This suggests that the period for which the Appellant was given her compensation was inadequate and Mr Jones suggested that the figure of 18 weeks from the date of the hearing was plucked out of the air by the Tribunal.

We are satisfied, having read the judgment and having considered all that was said by Mr Jones, that this was a figure that the Tribunal could well have thought was proper in the circumstances and we do not think that the ground on which Mr Jones has addressed us on is a ground which entitles the Appellant to succeed on the appeal; after all the Appellant did have benefit for the period of a year which, without the benefit of a crystal ball, the Tribunal especially with the very experienced Chairman, might well have thought it was adequate.

(2)(b) of the Ground of Appeal has been withdrawn on this appeal and therefore it is not necessary for us to make any finding on it.

The third ground reads:

"whether there was any or any sufficient evidence upon which the tribunal could have based a finding that as from 23rd March 1992 the appellant would have found employment at a net salary of not less than £192.33 (or alternatively £177.69) per week, or alternatively whether such finding was perverse."

Insofar as sub-paragrapah (a) of the Notice of Appeal is the wrong arithmetic, we have dealt with that but essentially we are satisfied that the number of weeks of benefit which the Tribunal gave to the Appellant was satisfactory in all the circumstances.

The last Ground of Appeal reads:

"whether the tribunal was right in law in refusing to hear evidence from the appellant of additional indirect losses relating to the probability of her having to sell her home and rehouse herself by reason of her unemployment and/or substantially reduced income."

In that connection it seems to be common ground that Mr Jones made an application to such evidence to be introduced to the Tribunal but the Tribunal did not let that evidence be introduced.

We have been referred to Norton Tool Company Ltd v Tewson

[1972] ICR 501

where Sir John Donaldson, then the President, remarked that all the circumstances of the case had to be taken into account. Our present case is a case where the Appellant had moved from London especially to take this job in Burnley. She had been given, on the evidence we have heard, housing costs to make that removal and it seems to us that the Tribunal may have erred in refusing to hear evidence on this point, indeed that such evidence, if it had been heard, might have led to the change in the award which had been made. On this particular point we think it right to remit the matter to the Tribunal for the evidence to be admitted and a further determination made.

We should say we asked the parties to see if a figure could be agreed to save a further hearing but that has not been possible for reasons which we can well understand. In the circumstances we will remit this for a further hearing. We see no reason why it should not be before the same Tribunal who heard the case from which this appeal is made.