Cope v Carnaud Metal Box Aerosols Plc [1995] UKEAT 495_94_1010

EAT
Cope v Carnaud Metal Box Aerosols Plc
[1995] UKEAT 495_94_1010 · 1995-10-10

JUDGE HULL QC:

This is an appeal to us by Mr Cope who appears in person before us today. He was employed by Carnaud Metal Box Aerosols Plc at Sutton in Ashfield, Nottinghamshire, as a skilled electrician. The employers are represented by Mr Campion who has greatly assisted us. His employment began in August 1988 and it ended on 8 November 1993 when he was absent, he had been unwell. The question whether his dismissal on that date was fair or unfair was decided by the Industrial Tribunal sitting at Nottingham under the chairmanship of Mr Bellis on 6 April 1994. They held that the dismissal was unfair but that Mr Cope was 50% to blame for what had happened.He had asked in his IT1, his form of application to the Industrial Tribunal, for reinstatement. The Industrial Tribunal thought it inappropriate to order reinstatement, that was a matter of discretion for them. They had to go on and consider what, if any, compensation to award, bearing in mind their findings of fact. They found it inappropriate to award compensation for the period in between his dismissal and the hearing before the Tribunal. Fortunately that was not a very long period by the standards of today, something like 3 months. They said:"...The applicant made it clear that he has made no effort to find other employment between the date of dismissal and the date of this hearing. He said in terms that he had looked at advertisements for commensurate jobs but was really looking for reinstatement. We do not think in these circumstances that it will be appropriate to award the applicant a compensatory award..."..They then went on to future loss.They then went on to say that they were going to award compensation in respect of a period of 12 weeks. They said:
"...He is a well qualified young man and is clearly good at his job... the applicant ought to obtain employment fairly shortly...He is an electrical engineer. We have decided therefore to award the applicant his net pay for a period of 12 weeks.
They did that. They then made the 50% deduction. First of all they gave him his basic award. Nothing turns on that. Then they gave him his compensatory award - 12 weeks at £279 per week. That was the net figure which they found.When you look at the last 12 weeks in which he was in employment, the pay advices were produced by the employers and the net was, it is true, £279. Of course they must base that part of the award on the net figure and not the gross figure. On the face of it that calculation was correct. It is criticised by Mr Cope; he says the £279 was not an appropriate figure. "I was earning something like £23,000 a year, the year before, and was going to earn more this year." The fact is that the Industrial Tribunal was dealing with a matter of fact. We can only deal here with matters of law. It was a matter of fact and there was an element of discretion for them.They were perfectly entitled to take the net figure for the last 12 weeks and say that that most fairly represented what had to be a speculative exercise, the likely earnings for the next 12 weeks. They could of course have made other speculative assessments. They could have said, "we think in all the circumstances it is very problematic whether he would have lasted that long" and reduced it for that. They might have said "in view of his ill-health he might not in fact have been able to attend regularly at his place of employment". They no doubt considered all relevant matters like that. They arrived at the figure of £279 and as a matter of fact we cannot criticise their finding on that. Mr Cope also criticises the period of loss. The same applies to that: 12 weeks is a figure which they were entitled to select, drawing on their knowledge as what has been called an "industrial jury" of the local conditions. It was purely fact for them - just as they were perfectly entitled to say that it was not reasonable for Mr Cope to do nothing serious about getting a job in the period whilst he was waiting for the hearing. That again was a matter of discretion and fact for them and we cannot find any error of law in their approach.We come to the final matter on which Mr Cope has expressly appealed and that is that they made no allowance in respect of his pension. There are several things to be said about that. The first thing is that the Industrial Tribunal, before whom Mr Cope appeared in person, do not say anything about it. If they had taken it into account, one would expect in the circumstances that they would have said:
"we considered this and decided that it was too small a sum, too doubtful and difficult for us to make any assessment on that basis"
. They could have said, on the other hand, "we have not considered that; we think in the case of so young a man that it is wrong to award anything in respect of pension loss". They do not say anything like that and we think the fair inference is that they did not in fact consider it. We think that they should have considered it. It is true, as we pointed out to Mr Cope, that it was his duty as the Applicant to tell the Industrial Tribunal what he thought his losses were and to set out his submissions on that. He did not apparently take this up with them. But then he was in person, it was the duty of course of the Tribunal to enquire. They had the advantage of having Mr Campion there, who has helped us very much, no doubt he would have helped the Tribunal if they had asked them about this, but he has told us that again it was not apparently raised by him. There seems to have been an omission there. Should they as a matter of law considered it? We think that they should. Nowadays, with a young man earning such substantial earnings, the contributions that he makes at this stage are very important. It is quite true, it is pointed out to us, that this is a final salary scheme, but that is almost an anomaly in a sense. People are not expected nowadays to remain the whole of their working lives in the same employment and what happens, as one knows, is that when they go to a new employment a valuation has to be put on by interest in the fund, or the value of their pension, and that has to be transferred.The Tribunal heard no actuarial evidence, no accountant's evidence, to show them what the value might be and there was nothing from the pension scheme trustees. But we think that the "rough and ready" way of doing it, which would probably have commended itself to the Tribunal, is to say that where this young man has been making contributions and the company has been making contributions for 5 years, it is not unreasonable to suppose that the initial expenses of setting up the fund have been defrayed and that he is getting value for money in terms of pension in what he pays and the employers are getting value for money in respect of what they pay. So, in those circumstances, it would not be unreasonable to adopt that approach. Very helpfully Mr Campion has said that if we take the view that we have taken, he would not be opposed to ourselves, although we are not a Tribunal of fact, assessing the matter in that way. Quite clearly any sum which we have in mind will have to be reduced by 50% by parity of reasoning with the reduction which the Industrial Tribunal applied to the rest of their monetary award.We think therefore, being told by Mr Campion that the sum involved is £513.58 representing contributions by both employer and employee over the period of 12 weeks, of which evidence was given, that we should take one-half of the £513.58 and say that the Tribunal's award is to be increased by £256.80 and the appeal is allowed to that extent. There will be no further orders and in particular the matter will not be remitted to the Industrial Tribunal. As I pointed out to Mr Cope on behalf of all of us, to remit it to the Tribunal would be (at any rate potentially) very disadvantageous to him if the Tribunal were to say, as they would be fully entitled, "yes we did consider that, although we did not spell it out, and we took the view for reasons [whatever they may be] that he should not receive an award". So we think it better to take the course that we have done, more or less in Mr Cope's interest and since Mr Campion concedes the point; it will undoubtedly save a great deal of expense and time for the parties and we allow the appeal to that extent. That is the judgment of us all.