Dench v Fynn & Partners (A Firm) [1997] UKEAT 107_97_2602

EAT
Dench v Fynn & Partners (A Firm)
[1997] UKEAT 107_97_2602 · 1997-02-26

JUDGE PUGSLEY :

This is a case in which a matter has been listed for a preliminary hearing to see if there is an arguable issue of law arising out of the decision of the Industrial Tribunal sitting London (South). Anyone reading the appellant, Miss Dench's Notice of Appeal and her skeleton argument might not immediately appreciate that in fact the unanimous decision of the tribunal was that the applicant was successful in her action for unfair dismissal. Distilled from the many issues that she has sought to raise before us are two points alone that are germane.The first matter is this. In paragraph 17 of the tribunal's decision that deals with this issue and says as follows:
"17. Having regard to the period of compensation arising from the unfair dismissal we consider that this should be for a period from 16 September 1995 to terminate on the day on which she commenced employment with Druitts. This employment was not temporary work or work of a different nature to that she was qualified to carry out and taken for the primary purpose of mitigating her loss. It was an appointment, unlimited in duration except for the usual probationary requirements, as a qualified solicitor carrying out work of which she already had experience in providing her with additional experience in litigation. She sought and was given advice about the appointment before she took it and she was reminded of the particular problems that might arise in sole principal firms. Nevertheless she decided that she would accept what it was hoped was a career move at a salary very little different from what she was enjoying with the Respondent. That in the event she was unable to work amicably with the sole principal of Druitts, for whatever reason, was unfortunate but it is not something for which we consider it would be appropriate to visit the financial consequences upon the Respondent."
That conclusion is based on findings of fact which were made in paragraph 11 as to the applicant seeking alternative employment. We have considered some of the cases that the appellant has put before us, we are all unanimously of the view that there is no issue as to law which arises from the conclusions set out in paragraph 17. In our view it was perfectly open for the tribunal on the findings of fact that they had made to come to the view that the applicant fell to be compensated only until such time as she took the new post with firm of solicitors called Druitts. That her loss of that job arose from reasons totally unconnected with the unfair dismissal and that approaching the issue in a common-sensical way, having regard to the statutory requirements, that they were perfectly entitled to come to the view that for whatever reason she was unable to work at Druitts, it was not something for which it would be appropriate to visit the financial consequences upon the respondent. We therefore do not consider that issue is one that raises an issue of law that could be argued before a full tribunal. We consider that these matters were clearly before the tribunal and notwithstanding issues which arise on other aspects of the case, we consider that this matter does not raise an arguable ground of appeal.We turn now to the second germane point. Namely the tribunal's decision set out at paragraph 18 in its conclusion that the issue arose as to whether the applicant was entitled to a sum of money just over £300 as the final instalment of a profit related element. Our concern in this case is as to whether or not there was a procedural irregularity.The applicant has told us that she did not receive the final written submissions made on behalf of the respondents until after the final hearing. We are concerned if that was the case and she was not given them at the final hearing, she had no opportunity to deal with matters concerning whether or not the final instalment was properly payable. In these circumstances, it is we think right, that we should give leave for the issue as to her entitlement to the final instalment of the profit related pay to be argued at a full tribunal.We consider that the appropriate course is to define the issue as to whether there was a procedural irregularity, namely whether the parties were aware of the contents of the written final submissions requested by the Chairman prior to the final hearing, and whether the parties had an opportunity to deal with the arguments raised in those written submission in the oral hearing on 29th October.We ask that the Regional Office be directed to inform the Employment Appeal Tribunal whether they copied the written final submissions to the parties before 29th October; that the Chairman be invited to inform the Employment Appeal Tribunal whether he ensured the parties had a copy of those written final submissions at the hearing on 29th October. We give the appellant 28 days which we hope she will use to seek legal advice to enable her to amend her Notice of Appeal to deal only with issues that arise as to performance related pay. It must be emphasised that the only leave to proceed to a full hearing is on the issue as to the appellant's entitlement to her final instalment of profit related pay.May we finally say this. The appellant is herself a solicitor. I think it is right to say that she has no experience or very limited experience of areas of employment law. We have not found, as she has readily conceded at time, her written or her oral submission easy to follow. They have raised many issues which are simply not relevant either because they are issues of fact or in certain cases she has sought to put before us matters that have already been resolved in her favour. We do earnestly entreat her with all the emphasis at our command that she utilises her time we have given her to seek legal advice and to formulate in precise and clear terms such matters as she wants as grounds of appeal at the full hearing related and germane only to issue of the payment of the final instalment of profit related pay.