D'Amore v Mostyn Hotel [1993] UKEAT 713_92_1307

EAT

D'Amore v Mostyn Hotel

[1993] UKEAT 713_92_1307 · 1993-07-13

JUDGE J HULL QC:

We are very grateful for Ms Karavas' submissions. She has cited to us several propositions about the assessment of compensation, all of which we accept entirely, but they must be construed in the context of the fairly difficult cases in which the judgments were given. It is the duty of the Industrial Tribunal to consider the question of compensation fairly and the main heads are the ones which Ms Karavas has explained to us. The Tribunal, we have not the slightest doubt, was well aware of them. When they came to deal with the question of compensation for this Applicant, who had taken an unauthorised holiday and was dismissed, they said:

"As to the question of compensation [they set out her wage] . . . We were not satisfied from the evidence presented to us that the applicant had really made a reasonable effort to secure further employment and our view is that she ought not to have been out of work for longer than 13 weeks."

They then do the necessary arithmetic concerning that. That is the type of conclusion which tribunals often do reach. In the nature of things they cannot be precise, but they have to decide what evidence to accept under Section 74 of the Act. They are required by statute to proceed as follows:

"(1) the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

That is the overriding duty and nothing said by this or any other tribunal or court can override a statute. Of course the courts, for the assistance of their successors and the industrial tribunals, have frequently given illustrations and stated principles for the assessment of compensation. It is perfectly true that in the first instance it is the duty of the complainant to show that she has suffered loss. If it is alleged that she has failed to mitigate by taking some reasonable step then the burden is on the respondent to show that that is so. Overriding all that, it is the duty of the tribunal to enquire and reach a just and equitable sum. With all respect to the argument which had been addressed to us, the sort of careful and exhaustive consideration which is envisaged in some of the cases which have been cited to us is only required in cases where there are substantial issues with substantial evidence. This was a case where the Applicant simply said that she had been looking for further week-end work and had failed to find it. It was in the catering trade; it may well be that the members had some knowledge of the employment situation in the catering trade. However that may be an appeal to us lies only on a question of law, not on questions of fact.

We have read the Tribunal decision. In our view it sufficiently explores the facts, and fairly does so, and there is no error of law shown to us by reading the decision or by listening to the arguments. In those circumstances the appeal must be dismissed.