Bomford Turner Ltd v Cutler [1997] UKEAT 675_97_1610

EAT

Bomford Turner Ltd v Cutler

[1997] UKEAT 675_97_1610 · 1997-10-16

JUDGE PUGSLEY :

This case has been to the Industrial Tribunal, the Employment Appeal Tribunal and back to the Industrial Tribunal and back now to the Employment Appeal Tribunal. The cost of this must be considerable to the public purse in providing tribunals. It must also be expensive in terms of possible expense and considerable emotional wear and tear to the litigants.

The tribunal's original decision was that the applicant was unfairly dismissed and they adjourned the issue as to remedies.

The Notice of Appeal was entered and the basis of that appeal was that in making their decision as to the quantum of the liability, the tribunal had unfortunately made certain findings which had an adverse impact on the issue of remedy. The Industrial Tribunal were directed by the Employment Appeal Tribunal to reconsider the issue of remedy. A tribunal hearing presided over by His Honour

Judge C Smith QC came to this view at page 5 of the judgment:

"In our judgment accordingly the right course here is for the matter to go back to the Industrial Tribunal on the clear footing that all the arguments that relate to remedy can be fully made, and must be fully considered by the Industrial Tribunal, on the remedy hearing. In other words it will open to both sides at the remedy hearing to call evidence as to what the result of consultation would have been and, of course, involved in that would be the question if consultation would, or might, have been successful from the point of view of the Respondent, Mr Cutler, as to what level of salary he would have been retained at."

Further on at page 6 of their judgment the tribunal say this:

"In other words, all these matters must be open to argument before the Industrial Tribunal. We are confident that the Industrial Tribunal will not feel themselves bound in any way, by any of the findings that they have made in either paragraph 2 or paragraph 15 of their decision. With great respect to them, we do find these findings somewhat inconsistent and we are quite satisfied that the most effective, sensible and realistic way of dealing with this application before us today is that the matter should be remitted to the same Tribunal so that they can embark altogether afresh on the remedy hearing, laying completely on one side any findings they have made in relation to the likely result of consultation."

Although Mr Diamond with realism has not proceeded with ground a) and f) of his grounds of appeal it is right that we should advert to those matters. This is not the clearest of decisions to follow. But we believe that disinterred from various aspects, bearing in mind that the respondents chose to call no further evidence, that the tribunal do at paragraph 9E, 10 and 11 set out the proposition that their view was that, at the end of the day, consultation may have made a difference, and:

"10. ... despite the professed reluctance of the applicant to accept, they believe that the chances are that there was a chance he would have accepted a total package of £30,000 inclusive of a car.

. ..

11. Assessing "the chance that (consultation) would not have made any difference or, to put it the other way, the chance it would have made a difference, and the question as to what the likely remuneration would have been had" the applicant kept on, we are satisfied that the just equitable compensation in this case is an award of 50% of the sum which otherwise would have been awarded based upon £30,000 a year."

Mr Diamond has put a number of points to us, but we do feel at the end of the day, although a confused and difficult picture emerges from this rather petitious decision, at the end of the day, the tribunal was entitled to make those findings. There does not seem to be any doubt that that is what the tribunal were actually saying, although it could have been more felicitiously expressed. Mr Diamond has not pushed those ground of appeal.

We have listened to the arguments as to the other grounds of appeal. In effect, we do not feel we can say any further than we think an issue of law is arguable as within that central contention that Mr Cutler should receive compensation based on the 50% possibility would have got a job for £30,000 a year.

We give leave to amend, as long as it does not contradict a) and f). The point is, we accept the tribunal were entitled to reach their decision that the application has shown that there is a possibility he would have kept on at a salary of about £30,000, inclusive of car. We accept that that is what their decision actually meant and that there was a deduction against a chance of not being successful of 50%. The matter may proceed on grounds b), c), d) and e).

The other matter is this. We are all of the view that it is in everybody's interest within the general structure to see whether or not you can now try and resolve some issues.