Quintin Cleaning & Support Services v Uwudiale [1997] UKEAT 958_96_2801

EAT
Quintin Cleaning & Support Services v Uwudiale
[1997] UKEAT 958_96_2801 · 1997-01-28

JUDGE C SMITH QC:

This is an application by the employers, Quintin Cleaning & Support Services Ltd, for leave to proceed to a full hearing of an appeal against the decision of an Industrial Tribunal, held at Stratford on 7 June 1996, when the Industrial Tribunal, having decided that the employee, Mr T. Uwudiale, had been unfairly dismissed on 22 August 1995, ordered Quintin Cleaning & Support Services Ltd, the Respondent (the Appellants before us today), to pay a basic award and a compensatory award of £5,370.80p; the basic award was £463.00p.We have reminded ourselves today that the Appellants need only show an arguable point of law arising from the Industrial Tribunal's decision to obtain leave.Mr Mundon has appeared before us today and very politely and helpfully made that clear to us, that the only ground which he is now seeking to rely upon is ground 3 in the Notice of Appeal. We are quite sure that that was a wise decision on his part. So we, of course, will only consider ground 3 which we will come to in a moment.Putting the matter briefly, on the facts as found by the Industrial Tribunal, Mr Uwudiale had been employed as a cleaning supervisor since September 1992, by Executive Cleaning Services Plc. He worked on the Espree Leisure Ltd contract.It appears from the findings of the Industrial Tribunal that that contract was transferred to Quintin Cleaning & Support Services Ltd with the result, as the Industrial Tribunal held, that by operation of law under TUPE, Mr Uwudiale's contract was transferred to Quintin. It was Mr Uwudiale's case before the Industrial Tribunal that when he turned up to work at Espree following the transfer, it was made quite clear to him that Quintin considered they had no obligation to employ him and thereby summarily dismissed him in effect.The Industrial Tribunal found that they unhesitatingly accepted his account and rejected the Appellants' contention that all that Mr De Laryea had done was to demand proof of identity from Mr Uwudiale.The Industrial Tribunal then went on properly to consider the effect of Section 57(3) and Regulation 8 of TUPE and found that the dismissal was connected with the transfer and accordingly unfair. We make it clear, of course, that there is no appeal against the finding of unfair dismissal as Mr Mundon has made quite clear to us today.By paragraph 4, the Industrial Tribunal then went on to consider compensation and they set out their findings at paragraphs 4 and 5. They concluded, in paragraph 5, that there should be a basic award in the sum of £463 and then they went on to consider a compensatory award and they set out in detail in paragraph 5 exactly how they arrived at the figure of £5,370.80p as being the appropriate compensatory award. One of their findings relating to the compensatory award, is set out in paragraph 4 in this way:
"4 The Applicant gave evidence as to compensation. He confirmed that the figures for his gross and net earnings in the IT1 were accurate and this was not challenged. He had been working evening shifts as a cleaner and combining this work with pursuing a course of studies since 1993 at the University of East London [ and these are the crucial words]. Since his dismissal he had sought posts of a similar nature with similar working hours but he had been unsuccessful . He produced to the Tribunal two letters of rejection, one in March 1996 and the other in April 1996."
The Industrial Tribunal then went on to deal with other matters, and they finally concluded that the compensatory award should include the period from September 1995 onwards through until June 1996, and then 12 weeks from the end of June 1996, and they made their calculations accordingly as set out in paragraph 5.The point is taken that the letters that Mr Uwudiale placed before the Tribunal seemed to indicate that he was applying for posts, as it were, which were superior in status to that of a cleaner. One of the letters speaks of an application being unsuccessful in applying for a post of a "trainer" (whatever that may be) in relation to Hackney Employment Link Project (Help) Ltd, and the other one speaks of his being unsuccessful in relation to an application to McDonald's Restaurant, for the position of a trainee manager.The point that is taken by Mr Mundon today is that the Industrial Tribunal should have found that Mr Uwudiale had not taken sufficient steps to mitigate his loss by failing to apply for other cleaning posts and had he done so, so it was submitted to us, it is likely that he would have been able to obtain such posts somehow or another, despite the fact he was undergoing a course of studies, and in that way the Industrial Tribunal decision was flawed.We find that we must reject that argument. In our judgment, it does not raise any possible point of law. Questions of compensation are essentially matters of fact for Industrial Tribunals to decide. Included often within decisions made by Industrial Tribunals relating to compensatory awards there arise, of course, matters relating to mitigation of loss. Those are always questions of fact for the Tribunal to decide and, in our judgment, it was fully open to the Industrial Tribunal to conclude that Mr Uwudiale had made reasonable efforts to obtain alternative employment.It was open, of course, to those representing Quintin Cleaning & Support Services Ltd, to have cross-examined Mr Uwudiale before the Industrial Tribunal. With regard to all these matters, it was open to them to do so and it is plain that they had their opportunity to take up such points before the Industrial Tribunal, but that opportunity was not taken.In those circumstances, we cannot regard ground 3 in the Notice of Appeal as giving rise to any arguable point of law, since in our unanimous judgment, it is entirely concerned with a question of fact for the Industrial Tribunal to decide and, in those circumstances, we have concluded that this application for leave to proceed to a full hearing, despite the way in which Mr Mundon has put it before us today, will have to be dismissed.