London Borough Of Southwark v Mason [1998] UKEAT 1326_97_0209

EAT

London Borough Of Southwark v Mason

[1998] UKEAT 1326_97_0209 · 1998-09-02

MR JUSTICE MORISON (PRESIDENT) : In this case the London Borough of Southwark have appealed against a remedies decision of an Industrial Tribunal. By their decision the Industrial Tribunal unanimously awarded the successful Applicant £4,399 of which £2,824 represented their estimation of his pension loss.

In accordance with our procedure the matter came before the Employment Appeal Tribunal on 20 January 1998 by way of a preliminary hearing ex-parte. It was the contention, made on the London Borough's behalf, that, effectively, the Industrial Tribunal had invented the pension loss element by themselves enquiring of the Applicant as to whether he had suffered a loss of pension. and then had proceeded to award him a wholly excessive sum in relation to his pension loss, and it was their contention that effectively the London Borough had been ambushed by the way the Industrial Tribunal had dealt with the matter.

On that basis we made various orders dated 20 January 1998 included within it an order that the balance of the award should be paid to the Applicant, within 14 days, and requiring the Appellants' instructing Solicitor to file, within 28 days, an affidavit setting out what had happened at the remedies hearing in relation to the alleged loss of pension, and we adjourned the matter to come back after these steps had been taken and the Chairman had had an opportunity of considering the affidavit, we directed that it should come back as an inter partes preliminary hearing, with a view to proceeding to a full hearing and determining the appeal, if we had been persuaded to take that course.

The Tribunal's decision is contained in Summary Reason form. The London Borough of Southwark had applied out of time for Extended Reasons. They were refused on the basis that the application had been made out of time and there was an appeal against the Tribunal's refusal.

The decision is contained, on remedies, in three paragraphs and we are of the view that this decision is in sufficiently full form to enable us to entertain an appeal against it, as it stands, without the need for asking the Industrial Tribunal to provide us with further reasons for their decision.

The first matter which the Industrial Tribunal had to deal with was the Applicant's request that he should be reinstated by the London Borough of Southwark. We regard this as an important factor in the way the case then proceeded. At the remedies hearing the first issue which the Industrial Tribunal had to deal with, was the question of the practicability of making an order for reinstatement or re-engagement as the Applicant was requesting. Their conclusion set out in paragraph 1 of their decision is that it would not be practicable to order reinstatement or re-engagement in this case. No doubt one of the factors that the Industrial Tribunal would have borne in mind was the fact that this remedies hearing took place some 88 weeks after the London Borough of Southwark had constructively dismissed the Applicant from his employment with them. They then had to consider the question as to the compensatory award that should be made in this case. Pending his application for reinstatement and re-engagement, the Applicant had taken up employment on a self-employed basis, as I understand it, as a licensed taxi-cab driver.

When the parties arrived at the Industrial Tribunal hearing, no particulars had been provided by the Applicant of details of his loss and, as I understand it, the London Borough of Southwark had taken no steps, through their advisers, to seek any details or documentation relating to it. This is, as Mr Linden has reminded us, not an infrequent occurrence. The remedies element of unfair dismissal hearings very often take place in an informal and inquisitorial manner, with the Industrial Tribunal using their local knowledge and experience to the full.

The Applicant's case was that, aside from the question of pension, effectively he was in no worse position financially from his earnings as a taxi-cab driver than he was, or would have been, had he remained employed by the London Borough of Southwark, but that he was without a pension during the period of this 88 weeks in which he was waiting to have his case for reinstatement and re-engagement adjudicated upon.

The Industrial Tribunal on that basis came to the conclusion that there was no room for a continuing loss element, certainly in relation to earnings, and they addressed their minds to the question as to whether he had suffered a past loss in relation to his pension. They concluded that the correct way of dealing with the loss, which they identified, was to award the Applicant the amount which the employer would have paid into the pension scheme, which he enjoyed with the London Borough of Southwark, from the date of his dismissal to the date of the remedies hearing, a period of 88 weeks, which multiplied by the amount of contribution of £29.25, gave a figure of £2,574 which was added to the other items. It is against that element of the award that the appeal was brought forward.

The affidavit, which was filed, in accordance with our order, and was sworn by, as we understand it, Counsel, who had been instructed on the London Borough's behalf. An extract from Counsel's notebook was cited in support of the proposition that it was the Chair of the Tribunal who asked questions regarding the Applicant's pension during the remedies hearing. He then set out the basis on which the Industrial Tribunal made the award. He said:

"It is my recollection and my note that no other questions were asked regarding pension entitlement or levels and therefore no further evidence was placed before the tribunal. The submissions of Mr Mason's representative did not mention any loss of pension entitlement."

He then says:

"I later discovered from Mr Maggs of the London Borough of Southwark that the pension contribution that was offered by Botes, the company that took over the contract from Southwark, was better than that paid by Southwark. Botes had not given any evidence to the tribunal, and therefore, no evidence regarding the real pension situation was actually heard by the tribunal."

In the comments of the learned Chairman, Mrs Gilbert, it was observed that according to her notebook the case was adjourned from 11.40 am to 12.45 pm "for the Respondents to find out pension details". She went on to say that she believed that, "either the Applicant or the Respondents must have given us the amount of the employers' contribution and we used that as a basis for our calculation. We were given no further evidence on which to base our calculations".

In their recollection, the Solicitors for the employee effectively confirm what the Industrial Tribunal Chairman has said, noting that it was also their recollection that the Tribunal was adjourned to enable the Appellant to make enquiries about the relevant figures. It is regrettable, as it seems to us, that the affidavit did not refer to this adjournment. It was obviously an important matter, having regard to the way the appeal was being advanced.

The position, as it becomes quite plain from the Chairman's comment and from the letter from the Applicant's Solicitors, is that whilst the question of pension was raised by the Chairman herself, the Respondents were given every opportunity to produce such material as they wanted on the pension question. It appears that they elected to give no evidence themselves. They gave no evidence about the offers made by Botes, a company which was taking over certain of the Counsel's activities in relation to which the Applicant had been employed, to indicate that the offer by Botes was genuinely available to the Applicant. Nor does it appear, from looking at the papers, that any attempt was made, in a serious or sustained manner, to suggest that the Applicant had unreasonably failed to mitigate his loss in relation to pension, or in relation to the taking up of employment as a taxi driver. It is plainly relevant, in that connection, that he wanted to return to the employment of the London Borough of Southwark, as a result of his having been unfairly dismissed.

In those circumstances, it seems to us unlikely that any tribunal would have concluded that the Applicant had behaved unreasonably in the way he had conducted himself, by obtaining employment as a taxi driver meanwhile and it seems to us unlikely that any suggestion that he should have obtained some kind of personal pension, would have found favour with an Industrial Tribunal, bearing in mind that he was hoping to go back into the local Authority's employment and that the local Authority would top up the contributions to the pension scheme, to enable him to return without loss.

The argument presented by Mr White, with ability in this case, can be summarised in this way. There was an internal inconsistency in the Tribunal's decision, because, having found that the Southwark scheme was more advantageous than if he had gone to a smaller company or taken out a personal pension as a taxi driver or plumber, the Tribunal did not then go on to ask themselves, what benefit might he have obtained if he had obtained another personal pension as a taxi driver or plumber? It seems to us unfair to criticise the Industrial Tribunal for that, bearing in mind the way the case was presented at the Industrial Tribunal, and the failure by the employers to call any evidence or, indeed to ask for, in advance, any documentation relating to the employee's alleged losses.

Secondly, it is said that the award, that is the 88 week period, was an immensely long time and that is buffered or supported by some statistics from the Solicitor's journal of April 1997. While we think that the past loss period of 88 weeks is longer than is desirable, the pressure on the Industrial Tribunals is immense, as we know, and it does not seem to us that, looking at a past loss of that period, is excessive or unreasonable. If it is suggested that it is relevant to the question of mitigation, which I think is the suggestion, then I simply repeat the fact that this Applicant wanted to be reinstated or re-engaged and could not reasonably be criticised, in my judgment, for not having made alternative pension arrangements pending that determination.

Then it is said that there was nothing to justify why 88 weeks was the appropriate period. With great respect, there was every reason to take 88 weeks as the appropriate period. What the Tribunal were doing was saying, in relation to past loss we are prepared to give a small sum by way of loss of pension, but in relation to the future, now that he knows that he is not going back into local authority employment, the time has come for him to obtain a private pension. The 88 weeks was a perfectly appropriate period, being the full period of the past loss and it was just and equitable for them to take that.

Then it is suggested that the amount of £29.25 per week was too precise in the context of a rough and ready calculation which was being done, and that it was a small number, and that they should have asked themselves the question whether, in fact, he was earning the same amount as he was earning before or whether he was, in fact, earning rather more which would have diminished or extinguished the pension loss figure. Again, we think that that is unfair on the Industrial Tribunal. They had to do the best they could with the information with which they were provided and they were relying, to a large extent, on their own knowledge and experience, no doubt, of the cab trade as well as other businesses.

Then it is said that the Tribunal failed to consider whether there had been a failure to mitigate his loss by not taking up the position with Botes. It seems to us that that is not a point which is an arguable point of law. The Industrial Tribunal were looking at the position after the termination of employment by Southwark. Questions of mitigation were for the employers to prove, if they could. There is no indication that they were provided with any material such as to justify a finding that the Applicant had behaved, in any way, unreasonably, in taking up a temporary job as a taxi driver until after his application for reinstatement or re-engagement had been considered.

Accordingly, we are not in the slightest bit persuaded that there was anything wrong with the decision of the Industrial Tribunal and, more particularly, we are satisfied that the Tribunal have behaved quite fairly and properly in relation to the way they have dealt with the pension element in this award. It seems to us, therefore, that the London Borough of Southwark have no grounds for any legitimate grievance against the Industrial Tribunal. It may be that, given the time over again, they might have approached the question of the remedies hearing in a slightly different way, but on the basis of the way in which it was dealt with, we do not think that there is an arguable point of law and the appeal will therefore be dismissed.