Addy v Powtek-Gericke Ltd [1994] UKEAT 729_92_0806

EAT
Addy v Powtek-Gericke Ltd
[1994] UKEAT 729_92_0806 · 1994-06-08

JUDGE J HULL QC:

In this case Mr Addy, who is a draughtsman of great experience, now aged, 60, appeals to us from a decision of the Industrial Tribunal sitting at Manchester under the Chairmanship of Mrs Corcoran with, of course, two Industrial Members. The decision was given after they had sat for two days on the 31st July and 17th August 1992. Mr Addy was successful before the Industrial Tribunal in the matter of, so to speak, liability. He complained to the Industrial Tribunal that he had been unfairly dismissed from his post as draughtsman. The employers said that he was redundant. The Tribunal accepted that contention holding that there was, indeed, a redundancy situation, if I can use that expression. There were five draughtsmen and the employers adopted a system of selection for the two of them who were to be made redundant which, in the view of the Tribunal, was unfair and unfairly operated, so that Mr Addy was unfairly dismissed, notwithstanding that there was a redundancy situation. Mr Addy of course does not complain of that finding, which is in his favour. He complains of the way in which the compensation which he was awarded was assessed. At the time of the hearing he had been dismissed for just over six months. The effective date of the termination of his employment was the 13th December 1991 and he had been unemployed ever since but actively seeking employment as a draughtsman.It is worth noting, before we go on to consider the criticisms of the decision, that the Tribunal found that one of the elements of unfairness was that disproportionate importance was attached by the employers, in the form of weighting, to the fact that Mr Addy was not qualified in a recent development of his skill, that is to say computer assisted or computer aided design, CAD for short. That was not his fault. He had been engaged on important work that could not be left, so that he had not had an opportunity to qualify in this particular skill to which the employers attached so much importance. That was an aspect of the unfairness of which he complained; that he was unfairly prejudiced through loyal service to the employers. He well understood that the employers had attached importance to that, maybe unfairly, but they did attach great importance to that in their own interest. It was not alleged that they were acting maliciously.The Industrial Tribunal, having found that there was unfair dismissal, went on to consider, as they were bound to, the question of compensation. They dealt with it fairly shortly as industrial tribunals so very often do, because there is in many elements of compensation a factor of the imponderable, which indeed is described in the leading text book as speculative. Particularly for a tribunal like the industrial tribunal, which is supposed to act in a summary way as soon as possible after the events in question, it contains a very large number of imponderables. The tribunal has to ask itself - I am not giving an exhaustive list -what would have happened if the employers had acted fairly? Would Mr Addy have been dismissed then? Might he have been dismissed fairly shortly afterwards? If the employers had acted perfectly fairly, perhaps the pressure of redundancy would have increased? They have to ask themselves, particularly with a man of Mr Addy's age, do we think that there is a real possibility that his health might have prevented him continuing in his employment? Then, when they go on to consider the complaint that he has been out of work as result of his unfair dismissal, of course they have to consider whether he has made reasonable efforts to find employment and they have to apply an objective element to that and call on such experience, or indeed evidence, as they have on the subject of the jobs market and say to themselves, how long should it have taken this gentleman, within reason, to obtain further employment? Do we think he was making all the efforts which he should have done, and in the right directions? They have of course, above all, to have regard to the provisions of the Employment Protection (Consolidation) Act 1978 which are helpfully set out for us in one of the skeleton arguments. They have to observe what Section 74(1) says:
"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."
So the consideration is of what is just and equitable; those are not precise terms and never can be. There is a large element of discretion and the fact that they are sitting with industrial members means that they can, unlike a judge, draw on their general experience and sit, in effect, as a jury. They are not wholly dependent on the evidence which they hear and they may rely on their own experience.We now consider what this Industrial Tribunal said, they said as follows:
"12 Having found the dismissal unfair the applicant elected for compensation and we deal with the matter in that way. The applicant has already received the equivalent of the basic award and we make no award under Section 73 EP(C)A. The applicant is still unemployed. He gave evidence that he had been to job centres not only in his own area but elsewhere and had put his name on lists for subcontractors. All the jobs he had applied for had been as a draughtsman. He had not enquired or considered training on CAD since he said that the work would create eyestrain for him given that he has already to use two different pairs of spectacles. He has been claiming unemployment benefit and has had 6 months of Family Credit. We had to consider whether he had failed to mitigate his loss both by restricting himself to looking for draughtsmen's work and not attempting to train on CAD. We consider that having been unemployed for 6 months the applicant must have realised the difficulty that he was going to face in looking for a draughtsman's job and not having been trained on CAD. We find that it was unreasonable not even to enquire about the possibility of such training or to make any other attempt to find out about CAD. We therefore limit the award to 28 June 1992."
In other words, they calculated his losses up to that date on the basis, clearly, that they considered on balance that he should have obtained employment at or about that date. Of course there could be no precision. They then reached a finding very favourable to Mr Addy, they said:
"We also considered whether if the procedure had not been flawed and if the respondent had consulted with the applicant" [another reference to the unfairness, their failure to consult] "whether this would have made any difference to the decision to dismiss him. We cannot say that he would have been dismissed even had they consulted nor can we say that the applicant would have been dismissed at the end of 2 weeks which the respondent argues would have been a reasonable period for consultation. There was a good chance the applicant would not have been selected and we decline to say that he would have been dismissed at the end of 2 weeks or at the end of any other period of consultation."
Now that was a very favourable finding to Mr Addy because of course it was not making a discount, which tribunals are fully entitled to do, for the prospect that if the employer had thought carefully and behaved fairly nonetheless the employee might still have been dismissed. As the authorities show the industrial tribunal would be quite entitled to make a deduction of maybe 30%, maybe 50%, for that possibility. They did not do that but of course they had to consider all the other imponderables as well.That part of their decision which limits the award for money loss to the period up to 28th June is criticised by Mr Addy, through his advocate Mr Pinder, who has taken all proper points on his behalf, in various ways. Mr Pinder says, among other things, that the Tribunal did not really enquire into this. Such an inquiry would have shown all or part of the following: that he was in great difficulties financially and in every other way, he is a family man, he was out of work, it is not so easy to get a CAD course, you have to go to somewhere where such education can be received. In general, that does not start until the academic year starts in September or October of each year. Then it will cost money; it costs £300. Mr Pinder says that in fact, in spite of the remarks about his eyestrain, Mr Addy has undertaken such a course and has successfully completed it and so, he said, the Tribunal should have enquired into those matters as best they could. He says that in their decision it is quite plain that they are putting the burden of proof the wrong way round. Section 74(4) says:
"In ascertaining the said loss the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or of Scotland, as the case may be."
That, as Mr Pinder points out, puts the burden of proof on the defendant or respondent, as it would be in this case, the employer, to show that there has been a failure to mitigate. Mr Pinder says there really is no evidence of that at all.But the answer to that seems to be twofold. First of all the Tribunal were well entitled to draw on their experience of what it was reasonable to expect Mr Addy to do and secondly, and much more important to our minds, they had heard Mr Addy. Questions about the burden of proof really arise much more naturally in the context of a Court of Law and what they mean is this, that if no evidence is given on a particular subject the Court cannot be satisfied of that in favour of a person on whom the burden lies. It is a burden on that person to adduce at any rate some evidence; if he does not, then he will have to rely on the evidence on the other side and he may not be lucky there because the evidence on the other side may tell entirely against him. Then he will not have discharged the burden of proof. But the Tribunal had heard Mr Addy and it was for them to say what figure they arrived at, and on what basis, having heard Mr Addy's evidence of course, which would tell against him as well as for him, and if the Tribunal decided, having heard Mr Addy, that he was not trying as hard as he should or that he was making a misguided attempt to get further work, they were fully entitled to say that and the question of burden of proof does not arise in those circumstances. It was their duty, of course, to consider all the evidence, but first and foremost they had to consider Mr Addy's evidence. They did not say exactly what they made of that, as is clear from the passage which I read; they quoted Mr Addy's evidence but they did not say exactly what they thought of it and exactly what findings of fact they made on it. Mr Pinder criticises them for that too. But again, an industrial tribunal is a tribunal of summary jurisdiction; as long as they set out their main reasons they are not obliged to make findings on all they have heard.So we think these criticisms are, in principle, unjustified. Mr Pinder made a number of criticisms. He says that the way in which they gave their decision showed a lack of awareness of the burden of proof. There was a lack of consideration of factors relevant to CAD training. There was a lack of consideration of personal factors. As I say, the Tribunal undoubtedly thought (bearing in mind that Mr Addy had not obtained CAD training), he was embarking on a difficult task indeed in seeking employment as a draughtsman. It is implicit in that that he should, at any rate pending acquiring CAD skills, have sought employment in other related fields. That is another imponderable which they had to consider and it is said by Mr Pinder that they should have made sure they had further evidence on these points. There was very little evidence, he says. But one asks rhetorically, whose fault is that? When Mr Addy was asked about this matter he said that he had not had CAD training, it would impose eye strain on him because he had already had to use two different pairs of spectacles. He might have said it would not be easy for him to obtain CAD training. He might have said: "surely you realise I should have to go to an institution, a polytechnic, a university, somewhere where I can learn these skills"; but he did not. He said "no" because of eye strain. It is all very well to talk about burden of proof, but first and foremost the task rests with the complainant to satisfy the Tribunal about the compensation which he deserves, that is to say, the amount which it is just and equitable to give to him in respect of his loss. It may be very easy to do that in many cases; it may, as in this case, involve certain difficulties. It was for Mr Addy to explain these matters.Mr Pinder recognised that he cannot ask us to sit again as a tribunal of fact and consider these matters and we asked Mr Pinder why the Tribunal was not asked straight away to review their decision in the sense of hearing this further evidence; that it was not just a case of eye strain, but it was a case of difficulty and doubt in obtaining this training, and expense, and so forth. Mr Pinder, who did not, of course, appear for Mr Addy below, did not appear to us to give any very satisfactory answer to that and it does seem to have been a course which could have been resorted to by Mr Addy.Mr Addy has to show us that there was an error in the approach of the Tribunal. Mr Pinder set out, in paragraph 6, various criticisms which I think I have dealt with and assertions about the facts which again I have mentioned. It is said again, by Mr Pinder:
"Generally, the Tribunal received no evidence regarding how CAD training would affect the Appellant's employment prospects. Such evidence would have concerned the job market generally and personally for the Appellant who is now 59 years of age."
and so the decision, he says, was "arbitrary". One asks "whose fault is that?" Surely if Mr Addy was going to suggest that a very long period of unemployment was in prospect because even CAD training, which was difficult to obtain, by itself would not help him or would not help him very much to obtain employment, it was up to him to adduce that evidence. It is putting it, it seems to us, the wrong way, to say that it was the duty of the Respondents to adduce that evidence.There is justice in what is said by Mr Middleton for the employers; that essentially this is an attack on a finding of fact. Industrial Tribunals are not supposed to conduct themselves as Courts do. When Courts consider substantial awards of damages for loss of earnings, which so often arise in personal injury cases of a serious sort, expert evidence is given. Not merely medical expert evidence but evidence from accountants and evidence from experts in the employment field about the employment market. This is accompanied, of course, by written schedules often of great length and is given to enable the judge to arrive at a reliable assessment of the loss under each of various heads which are put forward as to future loss, past loss and so on. The judge is required by practice, which has existed now for many years, to reach separate findings on the many heads of damages and to ensure so far as he can that there is no duplication, and so forth.To require industrial tribunals to proceed in that way with what are, in effect, long written pleadings of the loss; receiving evidence about the jobs market from experts; receiving evidence devoted solely to these issues of quantum; would, in our view, be completely contrary to authority and to the principles on which industrial tribunals conduct their enquiries. Industrial Tribunals, as we have said, are required to act in a summary way and the very statute which gives them their jurisdiction, the Act of 1978, requires them to make an award of compensation which is just and equitable having regard to the loss sustained by the complainant in consequence of the dismissal. I have mentioned some of the imponderables which they have to take into account in reaching their assessment. Their task is not carried on in the same way as a Court's enquiries into damages are carried on. The submissions which were made to us by Mr Pinder this morning appear to us to be more appropriate to the enquiry of a court into a substantial claim for damages for past and future financial loss and less appropriate, and indeed in this case inappropriate to an industrial tribunal which is conducting a summary enquiry into what is just and equitable, bearing in mind all the imponderables which I have mentioned.In all those circumstances it appears to us, in spite of the very helpful and fair way in which the case has been put on behalf of the Appellant, that there is in fact no point of law here and that Mr Middleton is justified in describing this as an attempt to re-try the case on its facts, or to go into the facts and obtain fresh findings of fact. Therefore we have no alternative, since no point of law is disclosed, to dismissing the appeal.