Wace Print Group Ltd (t/a Brandprint) v Barraclough & Anor [1993] UKEAT 564_92_1506

EAT
Wace Print Group Ltd (t/a Brandprint) v Barraclough & Anor
[1993] UKEAT 564_92_1506 · 1993-06-15

JUDGE HAGUE QC:

This is an appeal, or perhaps technically two appeals, brought by employers Wace Print Group Ltd T/A Brandprint, against the Decision of an Industrial Tribunal sitting at London North and sent to the parties on 2 July 1992. The appeal is limited to the quantum of compensation paid to two employees, Mr Barraclough and Mrs Gill, and is confined to one aspect of the calculation of the compensation for each of them.In view of the limited nature of the appeal we can outline the facts very briefly. Mr Barraclough and Mrs Gill were both employed by the employers, who were printers, and were made redundant. The Industrial Tribunal held that they had been unfairly dismissed because there had not been proper consultation or warning of the redundancies. They directed themselves, in accordance with the well known dicta of Mr Justice Browne-Wilkinson in Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 at p.96 which was cited with approval by Lord Bridge of Harwich in Polkey vAE Dayton Services Ltd [1988] ICR 142 . In accordance with those dicta, they assessed the chance that Mr Barraclough would still have lost his employment had all the proper steps been taken as a 50/50 chance and they reduced the compensation awarded to him by fifty per cent as a result. As regards Mrs Gill, they made a comparable assessment, but they thought the chance that she would have lost her job to be a little smaller and so they reduced her compensation by only one third.So far, there is no challenge to the decision of the Industrial Tribunal as set out in the full and clear Reasons for their Decision. In paragraph 16 of those Reasons the calculation of the compensation is set out in considerable detail. Dealing first with Mr Barraclough, after mention of the basic award and credit being given for a redundancy payment made to him, the two substantial parts of the compensation relate to the loss of wages from the date of the expiry of the four week notice period up until the date of the hearing and a second estimated loss of future wages after the date of the hearing.One small point has arisen as regards the four week notice period. Mr Vincent, who has said everything that can possibly be said on behalf of the employers, has taken a point which does not appear in his notice of appeal. He says that Mr Barraclough, and the same is true of Mrs Gill, was in fact paid his wages gross and not net and so credit should be given for the excess of the gross over the net amount of wages. However, the amount would only be very small and as the matter has not been raised by way of appeal we do not think that we ought to interfere with the Decision in that respect.Much more seriously, Mr Vincent takes the point that the amount of the compensatory award is excessive. In the case of Mr Barraclough, he points out that Mr Barraclough is a relatively young man and has drawn our attention to the duty that arises under Section 74(4) of 1978 Act to mitigate the damages and has referred us to a passage in Fyfe v Scientific Furnishings Ltd [1989] IRLR 331 about that. Mr Barraclough did give evidence that he had not found another job and that he had signed on with specialist agencies but that he had not looked outside the printing field. In cross-examination by Mr Vincent, he had also accepted that he had made no personal attempts to find a job but had relied solely on agencies. He had not got access to a publication called "Printing World" where advertisements for the sort of job he would want might be expected to appear.The Industrial Tribunal in its compensatory award, as we have said, assessed that first of all by reference to the net average wages lost over the period between the end of the notice period up to the date of hearing, which was 33 weeks. They made, in the case of Mr Barraclough, a deduction from that in respect of a very short period of employment which he had had in the meantime and they gave credit for an overpayment for the excess of the redundancy payment over the basic award. Then, when they came to estimated future loss of wages they said this:
"In this respect we are not satisfied that Mr Barraclough has done all that he might have done to mitigate his loss, in particular he does not seem to us to have applied for as many jobs as he could have in all the circumstances and while having regard to the local employment situation and the recession. We would limit his loss to a further 12 weeks from the date of this hearing at £267.00 per week."
They then added those figures and the £100 loss of industrial rights together and applied the 50% discount which we have already mentioned.What Mr Vincent says is that this compensatory award is far too much and does not take proper account of Mr Barraclough's failure to mitigate his loss (the Tribunal accepted there had been a failure in that respect). Mr Vincent cannot say, and does not seek to say, that that was not a matter which they did not take into account because plainly they did take it into account. He simply says it is excessive, and so excessive that the total comes to a figure that no reasonable Tribunal properly directed could come to. It is, in other words, a perverse decision.The quantification of compensation is, of course, a matter left entirely to Industrial Tribunals. It is for them to say, in the words of Section 74(1), what is "just and equitable in the circumstances" and it is for them to apply the rules about mitigation of loss. Despite what Mr Vincent asserts, we think that what the Industrial Tribunal have done here was fairly and squarely within their powers and within their discretion, and we cannot say that it is beyond what a reasonable Tribunal could have done.It may be (we do not express any opinion about it) that Mr Barraclough has been rather lucky and the employers correspondingly unlucky and that other Tribunals might not have awarded so much. So be it. That fact does not amount to an error of law and, of course, it is only errors of law that this Appeal Tribunal can consider. For those reasons we dismiss the appeal in respect of Mr Barraclough.As regards Mrs Gill, her evidence was rather different. She said that she had signed on with agencies and was concerned with a printing club where she saw magazines, and that she had also applied herself for twenty to twenty-five jobs from advertisements. She was cross-examined by Mr Vincent and accepted that she had not brought any documentation of any kind to do with those applications, but nevertheless the Industrial Tribunal accepted her evidence.The first part of her compensatory award in relation to the period between the end of the notice period to the hearing date was calculated simply by reference to her loss of wages. Under paragraph 17 heading (ii) "Estimated Future Loss of Wages", the Industrial Tribunal said this:
"We are satisfied that she has taken all reasonable steps to mitigate her loss by seeking alternative employment. There is only a small chance that she may get a job in January 1993 is someone else leaves. We would be minded to award another 36 weeks' in respect of loss of earnings but we have regard to the fact that she is pregnant and her expected week of confinement is at the end of September 1992."
They then gave some details about maternity rights etc and said at the end of that paragraph:
"Having regard to these reduced earnings, and the contingency that her pregnancy and confinement might have kept her out of remunerative employment for some period, we think it just and equitable to reduce the multiplier to 18 weeks..."
They then calculated the estimated future loss of wages accordingly.Again, it may be that the starting point of the estimate of future loss of 36 weeks is on the high side but that was reduced to 18 weeks and, as in the case of Mr Barraclough, that was a matter which we cannot say was beyond the powers and discretion of a properly directed Tribunal. For the same reasons as we have already stated in respect of Mr Barraclough, we think the Industrial Tribunal was clearly justified in coming to that conclusion and we dismiss the appeal in respect of Mrs Gill also.There are two other matters which we should perhaps mention. First with regard to Mrs Gill, there was some suggestion that she might have tried to hide from the Industrial Tribunal the fact that she was pregnant, and that fact only emerged from knowledge which the employers had obtained and only came out before the Tribunal in the course of her cross-examination. We really cannot express any view of that, but the fact is that it did come out and we cannot see that that factor can make any difference. Secondly, Mr Vincent has also mentioned that there was a trainee chairman sitting with Mr Hepple, the Chairman of this Industrial Tribunal. We cannot think that that would have affected the matter at all.Finally, and in summary, Mr Vincent also says, as he said in his notice of appeal, that awards of this kind and of this size bring the industrial tribunal system into disrepute. That is not a factor that we can pay any attention to. It must be a matter of subjective opinion about which different people may have different views, but in any event, it could not amount to any error in point of law.(((((((((((((((((((((((((((((((((((((((((((((((((((((( ...Mr Waters, on behalf of Mrs Gill, has made an application that the employers should pay his client's costs of this appeal. Under Rule 27 of the Employment Appeal Tribunal Rules 1980, it is only in rather exceptional circumstances that this Appeal Tribunal can order a party to pay costs. However, we have come to the conclusion that this case does fall within the exception. We think that in all the circumstances, and bearing in mind the Decision of the Industrial Tribunal and the fact that to appeal to this Appeal Tribunal it is necessary to have a proper point of law, it was unnecessary to bring these proceedings. For those reasons we will make an award in favour of Mrs Gill that the Appellants pay her costs.