PNG (ENFIELD) LIMITED v MRS G I SMITH [1999] UKEAT 1133_99_1012

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1133_99_1012Case No Appeal No. EAT/1133/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
PNG (ENFIELD) LIMITEDAPPELLANTMRS G I SMITHRESPONDENT
Before
Mr Justice Charles Mr P R A JacquesDate 10 December 1999
[1]APPEARANCES For the Appellants MR JOHN CROSFILL (of Counsel) Messrs Montague Santer Wells 44-44a Longbridge Road Barking Essex IG11 8RT MR JUSTICE CHARLES : The parties to this appeal are a company called PNG (Enfield) Limited and a Mrs G I Smith. The matter comes before us by way of Preliminary Hearing. The appeal is against a decision of an Employment Tribunal sitting at London (North), Extended Reasons for which were sent to the parties on 10 August 1999; that was a decision relating to Remedy. This case has a fairly lengthy history and, it seems to us, that it has given rise to entrenched positions being taken by the litigants. We simply express the hope that it may be possible to settle the outstanding matters, which relate to amount, rather than have further proceedings before Tribunals. That is not a factor which we can properly take into account in determining whether on a preliminary hearing this appeal raises reasonably arguable points of law.[2]There is a professionally drafted (and if I may say so, skilfully drafted) Notice of Appeal. We have also had the benefit of a skeleton argument dealing with each of the points raised in the Notice of Appeal.[3]The Direction and Guidance Notes concerning Preliminary Hearings indicate that their purpose is to identify whether an appeal raises a reasonably arguable point of law. It is however, the practice of this Tribunal in a number of cases to go on and consider all the points of law that have been raised, with a view to seeing whether some of them should be pruned from a Notice of Appeal and struck out on the basis that they are not reasonably arguable.[4]A pragmatic course should, in my judgment, be taken in respect of that practice having regard to the time available for this Tribunal on a Preliminary Hearing, both as a matter of preliminary reading and by way of submission. In this context it is to be noted that the Practice Direction and the Guidance Notes indicate that a Preliminary Hearing is not estimated to last more than one hour.[5]In making his submissions to us Mr Crosfill identified his three main arguments in the sense that they are the arguments that, as we understand it, result in the biggest movement or identify the largest sums of money in issue. If any one of them were to succeed it would have the consequence, as we understand it, that the award would be one which did not reach the maximum amount payable. The first point he raised, and which I will therefore consider, is in respect of paragraph 15 of his skeleton. The ground of appeal dealt with there is in the following terms:
"The Tribunal erred in law in accepting the Respondent's submission that losses should be calculated only from the expiry of the Respondent's 'notice period'. The Respondent received the sum of £4209.50 in lieu of notice. The said payment being calculated without deduction of tax or national insurance. The proper approach was to calculate lost income from the date of dismissal."
In support of that argument the skeleton refers to the decision in MBS v Calo [1983] ICR 459. We were referred to that case, the most relevant part of it is on the penultimate and last page of the Report and in our view it provides support for the proposition that this ground of appeal is reasonably arguable.[6]The next ground which Mr Crosfill took us to is the one which appears in paragraphs 14 and 15 of his skeleton. This relates to the award of interest made by the Employment Tribunal on the enhanced redundancy payment. That interest was awarded for the period from the first decision of the Employment Tribunal until payment of the award, which took place sometime shortly after the hearing before the Employment Appeal Tribunal. The argument is that the Employment Tribunal had no power to make that award of interest, having regard to the terms of Rule 2 (2) of the Industrial Tribunals (Interest) Order 1990. It was that statutory instrument that the Employment Tribunal relied on in making that award of interest. They did not rely on any other power given to them by legislation, or the common law. That Rule provides as follows. That interest is payable:
" … if, and only if, an amount of money required to be so paid is – (a) specified in an award or other determination of a tribunal or, as the case may be, in an order or decision of an appellate court; or (b) otherwise ascertainable solely by reference to the terms of such an award or determination or, as the case may be, solely by reference to the terms of such an order or decision. but where a tribunal or, as the case may be, appellate court has made a declaration as to entitlement under a contract nothing in this Order shall be taken to provide for interest to be payable on any payment under that contract in respect of which no obligation to make the payment has arisen under that contract before the declaration was made."
[7]In introducing this point, Mr Crosfell we think rightly, accepted that it was not a point which immediately strikes one as being meritorious. However, he says that by reference to the terms of that Interest Order the Tribunal were wrong to award the interest they did.. We have concluded at this Preliminary Hearing stage and therefore simply at a preliminary stage and without hearing full argument on the construction of the Order that this is a point that is reasonably arguable.[8]The third point that was put before us orally goes back to the first grounds of appeal dealt with in paragraph 3 through to paragraph 10 of the skeleton argument. This argument flows from the fact, or the assertion of the fact, that in the summary of loss provided by Mrs Smith, through her representatives, an item is included in the following terms:
" 6th April 1998 – 30th November 1998 (14 weeks) David Suckling & Co @ £15,000 pa. (take home pay £218.66 per week) £3,061.24."
[9]As we have understood the mathematics £218.66 multiplied by 14 comes to £3,061.24. The problem with that part of the schedule, provided on behalf of Mrs Smith, is that the period between 6 April 1998 to 30 November 1998 is not 14 weeks. It is a considerably lengthier period. It follows that the figure of £3,061.24 is too low and therefore that the figure included in that schedule of total income for Mrs Smith of £21,883.03 is also too low by a figure of some £4,000.[10]In putting his submissions to us Mr Crosfill made a number of allegations of fact. He has expressly disavowed any intention of appealing on the basis of lack of natural justice, or the way in which the hearing was conducted, but the issues of fact which he has raised relating to the date upon which this schedule was provided, the dates upon which documents were provided by Mrs Smith, through her representatives, the order or orders that had to be made for the provision of those documents and in addition, the point that he made that on the day of the hearing Mrs Smith, through her Solicitors, provided the Tribunal and themselves with a made up and paginated bundle but did not provide any such bundle to PGN are points which, in our judgment are relevant to the appeal based upon the mathematical or error point, which we have just described. We, of course, only have one side of the story.[11]We therefore think it is important that the facts, as put to us, are recorded in an affidavit to be sworn by those who instruct Mr Crosfill and we will direct that such an affidavit be filed within 28 days from today's date.[12]We will also direct that the Respondent, Mrs Smith, (and/or her representatives) file an affidavit in answer to that affidavit, 28 days from the date of its service.[13]It seems to us that, if there is a dispute of fact which is relevant, either to our conclusion that reasonably arguable points are raised, or to the decision of the Employment Tribunal below as to costs, that that dispute of fact could also be relevant to a decision made by this Tribunal on costs at the end of the appeal hearing.[14]A further point that has troubled us in respect of this aspect of this appeal, which I have called the mathematical or error point, is that the Company did not seek a review in writing. It was put to us that that Review Hearing would, of itself, given rise to further expense and, as is apparent from the Extended Reasons of the Employment Tribunal, they took a fairly hostile stance towards the position of the Company.[15]At present, and therefore by way of a preliminary view, it seems to us that it would have been open to the Company to have written, once they had discovered this error, and invited the Chairman or the Tribunal as a whole, to deal with the matter on paper and if they had refused so to do then to have included the point and such refusal within the full body of an appeal. The existence of that possibility however, has not led us to conclude that we should hold that this part of the appeal is not reasonably arguable. The Company will simply have to take the risk that on the full hearing of this appeal the Employment Appeal Tribunal consider that this is a matter which should have been dealt with by way of review.[16]Another possible result is that the Employment Appeal Tribunal, when hearing this matter, would indicate that in their view the Tribunal itself should initiate a review. A review initiated by an Employment Tribunal is not time limited.[17]Further, in respect of this part of the case we would put down the marker that, if on an appeal before this Tribunal Mrs Smith and her representatives continue to maintain, without due justification, that an error is not included in the schedule they provided, namely if they assert that the period between 6 April to 30 November 1998 is 14 weeks, that also is a matter which this Tribunal might feel it appropriate to take into account in determining the liability for costs on this appeal.[18]One would hope and, indeed, I shall direct that the evidence of Mrs Smith (and/or her representatives) in response to the affidavit that I have directed should be filed on behalf of the Company should include a clear assertion as to whether or not they accept that that is an error and if it is an error an explanation as to how it came about. I would also expect and again, I shall direct that if it is accepted that paginated bundles were provided for the Tribunal and for those representing Mrs Smith, but not the Company, an explanation as to why that occurred is to be included in such affidavit evidence.[19]The other matters raised in the Notice of Appeal are matters upon which we have not heard submission. Taking the pragmatic course that I have referred to earlier and having regard to the point that, as Mr Crosfill submitted, these are matters which give rise to consideration of smaller sums of money and it may be that they are matters which would not be pursued, or would be pursued after the points that we have referred to on the appeal, we have concluded that we should not strike out those matters at this stage for the obvious reason that we have not considered them. This means that the Appellant Company can pursue them if it wishes to do so. We repeat that we have not considered them, and record that if the Tribunal that hears this case decides that one or more of them are not reasonably arguable, that is a matter which they can consider when dealing with costs.[20]We therefore direct that the appeal against the award of compensation do proceed to a full hearing.[21]The other aspect of the appeal is an appeal against the award of costs made by the Employment Tribunal.[22]It seems to us that reasonably arguable points are raised as to this part of the appeal, in particular, in respect of the points of law which we understand were argued below and which form the subject matter of the appeal, in respect of the gross payment that was made and the award of interest that was made.[23]There is an additional point. If Mrs Smith was providing information late, or had provided information which the employers took the reasonable stance she should be put to proof in respect of, in our view it is reasonably arguable that the conduct of the employers cannot be categorised as unnecessary or under any of the other headings in the power of the Employment Tribunal to award costs.[24]We therefore direct that the appeal against the order for cost also comes on for a full hearing.[25]We end as we began by expressing the hope that, notwithstanding(a) the behaviour of this Company as found by the Employment Tribunal and the Employment Appeal Tribunal, and(b) the history of Mrs Smith's employment and this litigation, that good sense will prevail with the result that those representing both parties will get out their pocket calculators and identify the figure that is appropriate to be awarded to Mrs Smith, by way of damages, and that a pragmatic view is taken as to the further expenditure and risk concerning costs against costs already expended.[26]There is little doubt, in our view, that a settlement of these proceedings now is a much better option for all concerned than continued litigation over quite small sums of money.[27]The only task remaining for us is to give this case a categorisation and a time estimate. We will give it Category A and a time estimate of a day.