London Borough Of Southwark v Biddulph [1997] UKEAT 985_96_1702

EAT
London Borough Of Southwark v Biddulph
[1997] UKEAT 985_96_1702 · 1997-02-04

MR JUSTICE KIRKWOOD : We heard this appeal on 4th February 1997 and now hand down our decision.

It is an appeal by the London Borough of Southwark against the amount of an award of compensation to be paid by the London Borough, as the employer, to Mr Biddulph, the employee, in respect of a complaint made by Mr Biddulph on section 170 Trade Union and Labour Relation (Consolidation) Act 1992 . The Industrial Tribunal heard the case on 8th July 1996 and gave its decision and reasons on 12th July 1996. The Industrial Tribunal found Mr Biddulph's complaint to be well-founded and made an award of compensation to be paid of £5,000.The background of the case was, in summary, that Mr Biddulph was Treasurer of UNISON No. 1 Branch in Southwark. He was an elected officer of the union. In that capacity he was entitled to two days per week paid time off from work for union duties. On 13th December 1995 that entitlement was suspended by the employer in the light of a pending investigation by it into an allegation that Mr Biddulph had been improperly involving himself in some projected unofficial industrial action. On 23rd December 1995 Mr Biddulph lodged his application under section 170 with the Industrial Tribunal. On 2nd May 1996 the employers' investigation was completed, and concluded that there was no evidence to support the very serious allegation of misconduct made against Mr Biddulph. His entitlement to time off was reinstated on 14th May 1996.During the hearing before the Industrial Tribunal the employer was constrained to concede that there had been no legal foundation for its action and that Mr Biddulph's application was well-founded. In those circumstances, and pursuant to section 172(1) of the Act, the Industrial Tribunal was obliged to make a declaration to that effect. The words of section 172(1) continue:
"... and may make an award of compensation to be paid by the employer to the employee."
In short, it had the discretion as to that.The Industrial Tribunal, in its extended reasons, dealt with that aspect succinctly in these terms:
"8. Section 172 of the Trade Union and Labour Relations (Consolidation) Act 1992 sets out the remedies as follows:-
"s.172(1) Where the tribunal finds a complaint under section ..170 is well founded, it shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee.
(2) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to the employer's default in failing to permit time off to be taken by the employee and to any loss sustained by the employee with is attributable to the matters complained of."9. The applicant confirmed that he had suffered no actual financial loss during the six months of his de-recognition. However the tribunal takes a very serious view of the flagrant disregard by the respondent of the legislation, and in our discretion, we find that it is appropriate to make an award of compensation, and that the sum which it is just and equitable to require the respondent to pay to the applicant is £5000."It is conceded by the appellant that the Industrial Tribunal was entitled to have regard to its view of the seriousness of the infringement as one of the matters it could take into account in exercising its discretion whether to make an award.But the appellant's case is, first, that the Industrial Tribunal was wrong in law in making an award that was punitive, in the nature of a penalty, as, says the appellant, it plainly did. The appellant relied upon the decision of the Employment Appeal Tribunal in Brassington and others v Cauldon Wholesale Ltd [1978] ICR 405 :
"Parliament's intention in conferring rights under section 53 of the Act of 1975 [ action short of dismissal ] upon employees was to compensate them for injury sustained as a result of the infringement of those rights, rather than to fine the employer; that when assessing the amount of compensation, an industrial tribunal should, therefore, take into account any monetary loss suffered and should in addition award compensation for any non-pecuniary injury sustained as a result of the employer's action."
The respondent to this appeal does not contend that the Industrial Tribunal was entitled to make a punitive award.Whilst not conceding that Brassington was rightly decided, both Counsel agreed that the Industrial Tribunal was bound by it and neither sought to persuade us that it was wrongly decided in any respect.The second proposition the respondent relied upon was that whilst the Industrial Tribunal might have been entitled to take into account non-pecuniary loss, it could only do so if such loss was established. The appellant relies upon a passage from the judgment of Bristow J in Brassington at page 414C-D:
"Parliament has not sought to categorise the injuries, other than to the pocket, for which compensation may be awarded if the tribunal think it just and equitable in the circumstances. But the employee who claims compensation must in our judgment first satisfy the tribunal not only that his right has been infringed. If he shows that and no more then mandatory declaration is his remedy. He must go on to show injury resulting from the employer's action which infringed his right, before the discretionary remedy of an award of compensation is in play."
Counsel for the appellants submitted:(1) That the Industrial Tribunal found as a fact that there was no pecuniary loss;(2) that the Industrial Tribunal made no finding of any non-pecuniary loss;(3) that nowhere in the extended reasons is there any reference to any evidence of, or enquiry as to, non-pecuniary loss;(4) there is accordingly no basis for a finding that it was just and equitable to make any award for compensation at all; such an award was therefore unlawful.(5) Both from the wording of paragraph 9 of the extended reasons and from the absence of any other material the conclusion was inevitable that this was punitive award; such an award was unlawful.Counsel for the appellant argued, further, that the proper approach for the Industrial Tribunal was first to find whether there was a loss, pecuniary or non-pecuniary, and then to arrive at a figure of compensation having regard to the employer's default, which could lead the Industrial Tribunal to award less than the loss found but not more.The argument for the respondent to this appeal is essentially that it was open to the Industrial Tribunal to award compensation in respect of non-pecuniary loss (which was not an issue for the purposes of this appeal) and that the amount of the award was a matter peculiarly within the discretion of the Industrial Tribunal. This appeal tribunal should not interfere unless it was demonstrated that the Industrial Tribunal erred in law; or reached a decision that was perverse.Counsel for the respondent reminded us that Mr Biddulph was unrepresented before the Industrial Tribunal - he appeared in person. We were told it was not correct that the Industrial Tribunal had no material as to non-pecuniary loss; it was told by Mr Biddulph of the difficulty and humiliation and inconvenience he had been put to, and of how he had had to do various union work in his own time.In asserting that there was no foundation for a finding of loss, Counsel for the appellant looked solely at the face of the extended reasons. Counsel for the respondent has told us from the bar what his client instructs him actually occurred at the Industrial Tribunal. None of that leaves us in a very satisfactory position. Nobody has called for the Chairman's Notes of Evidence. The appellant did not do so, in order to substantiate what amounts to a perversity argument (a finding not supported by any evidence); the respondent did not do so in order to demonstrate what material the Industrial Tribunal had.Looking again at paragraph 9 of the Industrial Tribunal's extended reasons, it seems to us that it is clearly arguable that the Industrial Tribunal took into account what it described as "the flagrant disregard ... of the legislation" in deciding to exercise its discretion to make an award. And that the words "the sum payable which it is just and equitable to require the respondent to pay the applicant is £5000" can well be read without regard to the Industrial Tribunal's view of the flagrant nature of the infringement. Having said that, however, it must be remembered that the wording of the extended reasons should not be subjected to over-detailed analysis.It is undoubtedly true that one of the difficulties in the case is that the Industrial Tribunal did not fully expose the reasons and considerations it had in mind in arriving at the figure of £5,000. But for us to infer that there were no reasons, that there was no material on which that conclusion could be reached, would be for us to infer perversity. When a perversity argument is put forward it can only succeed if it is clearly demonstrated. To demonstrate it, the Chairman's notes are nearly always necessary. It cannot, in our judgment, be demonstrated without them in this case.Unless it is demonstrated that the Industrial Tribunal cannot have had relevant material in mind, it cannot any more be demonstrated that the Industrial Tribunal was simply making an award that was a punitive one and therefore wrong in law. The appellant has failed to satisfy us that the grounds are established for us to interfere with the making of an award of compensation by the Industrial Tribunal.A subsidiary argument raised in the appellant's Notice of Appeal was that the award made was disproportionate, was far too high. That argument was not pursued before us because Counsel for the appellant contended that whilst a declaration was properly made, there should not have been any award at all. We were, however, at first exercised by the size of the award. But in the result we concluded that it was not outside the band in which an award could properly have been made so that it was not for us to interfere.The appeal will accordingly be dismissed.