MR S R FRANCIS v T M GROUP PLC [1999] UKEAT 688_98_0107

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 688_98_0107Case No Appeal No. EAT/688/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S R FRANCISAPPELLANTT M GROUP PLCRESPONDENT
Before
His Honour Judge D M LevyDate 1 July 1999
[1]APPEARANCES For the Appellant MR R POWELL (of Counsel) Instructed By: Messrs Sef Awan 55 John Street Luton Bedfordshire LU1 2JE For the Respondents NEITHER PRESENT NOR REPRESENTED JUDGE LEVY: This is an appeal by Mr Selvin Francis against the T M Group Plc ("the Respondent")which comes before us in unusually unhappy circumstances because there have been enormous delays between today and the time when the Appellant started his procedures for relief in the Employment Tribunal. We take the background facts from the chronology provided by Mr Powell to us today. On the 18 March 1991, the Appellant began work with a predecessor of the Respondent. He was dismissed on 8 October 1993. On 21 October 1993, he submitted his complaint. There was a hearing on 20 October 1994. The determination of that hearing was promulgated on 2 December 1994. There was an appeal against it by a notice dated 13 January 1995 and on 16 January 1996 a panel of this Tribunal remitted the matter to the Employment Tribunal for reconsideration.[2]On 18 and 30 April and 11 July 1996, there was apparently a second hearing before an Employment Tribunal which was a formality. On 18 July 1996, there was a promulgation of an annulled determination. On 29 August 1996, there was a Notice of Appeal against that annulled determination and that resulted on 13 and 26 January 1998 and 25 March 1998 in a third hearing before an Employment Tribunal. On 1 April 1998, there was a promulgation of the determination of the third hearing, which is the subject of the appeal before us. There was a Notice of Appeal against that determination on 13 May 1998. There were slight corrections to the corrective reasons sent on 18 May 1998. On 15 June 1998, there was a preliminary hearing for the panel of this Tribunal which held that two grounds in the Notice of Appeal were both arguable. Unhappily it has taken today until the hearing of the Appellant's appeal. The Respondent knows of the appeal, but has not taken part today.[3]Although the preliminary hearing before the Employment Tribunal was heard on 15 June 1998, its decision appears to have been sent to the parties on 6 October 1998. We turn to the decision itself. Having set out some of the background which we have mentioned, the Extended Reasons continue:
"5. The Tribunal heard evidence from the Applicant. The Respondent was unable to call Mr Nicholas Stewart Mackay as it was unable to trace his whereabouts. It consequently sought leave to adduce in evidence the statement of Mr Mackay which had been prepared for the hearing in 1996 and which formed the basis of the sworn evidence then given by Mr Mackay. We granted leave for the statement to be tendered and we have read it. 6. At the outset of the hearing, Mr Awan made clear that the Applicant no longer sought either reinstatement or re-engagement and in those circumstances, we did not need to further consider these prime remedies and make no order in respect of these."
The Tribunal went on to find that, having heard the evidence of the Appellant, they were satisfied that a concession was properly and appropriately made in the circumstances by the Respondent and that there was no culpable or blameworthy conduct on the part of the Appellant which could amount to contributory fault. In the light of that concession it was not necessary for them find the facts leading to it. They then dealt in paragraph 7 briefly with the Appellant's job as a Head Chef for the Respondent. The Extended Reasons continue:
"Although he worked additional hours in order to deal with the burdensome administrative work, he did not perform it to Mr Mackay's satisfaction. He was warned and ultimately dismissed on 8 October 1993. No proper procedures were followed during the course of the disciplinary hearing in that the Applicant was not afforded a proper opportunity to state his case or to give an explanation. It was this which rendered his dismissal unfair."
The Tribunal then went on to consider whether, if the Respondent had followed proper procedures, the Appellant would have been dismissed and they were satisfied:
"on the balance of probabilities and doing the best we can with the evidence available to us, that if the proper procedures had been followed there was sixty per cent chance of the Applicant's not being dismissed and it therefore follows that the compensatory award must be reduced by forty per cent. We reject the Respondent's submissions that even if proper procedures had been followed, the Applicant would have inevitably been dismissed, for that would be tantamount to finding that the Respondent was wholly unreasonable, and this we are not prepared to do."
[4]The Notice of Appeal which was allowed to come forward, allowed the Appellant to submit on this appeal that there were no proper reasons given for the finding that there was a sixty per cent chance of the Applicant not being dismissed. In submissions before us, Mr Powell has attempted to suggest that it was wrong for the Tribunal to allow in the evidence of Mr Mackay. It is right to say that that was not raised in the Notice of Appeal. It is also right to say that looking at the IT1 and the IT3 as we have done, it was Mr Mackay's complaints about the Appellant which seem to have led to the dismissal of the Appellant.[5]However that might be, we are satisfied that it was proper for the Tribunal to look at Mr Mackay's evidence, though unhappily, the decision which they have given does not say what, if any, weight they gave to it. We are unable to say whether the sixty per cent chance of the Applicant not being dismissed is right or wrong, and although we were asked to substitute our own judgments for that, we are unwilling to do so because we simply did not have the material to work on. In those circumstances, Mr Powell, rather than this matter going back to the Employment Tribunal for what would inevitably further delays, abandoned his appeal on this point.[6]The further matter raised on appeal was the evidence of loss. Here the Tribunal said this:
"However, as we understand it, on 11 February 1995, the Respondent's undertaking was transferred. Of necessity therefore, the Applicant's employment with the Respondent would have ended on that day. He was not employed immediately before the transfer nor was his dismissal one which related to the transfer and therefore, the Respondent's liability must cease on 11 February 1995."
[7]Mr Powell has addressed us on regulation 5 of the Transfer for Undertakings Protection Employees Regulations 1981/1794. He submits that regulation 5 of TUPE concerns a liability which transfers from one employer to another upon the transfer and undertaking. He submitted this is relevant with regard to the calculation of the compensatory award. He submitted that the Tribunal therefore erred in law in taking into account the transfer of undertaking in assessing compensation.[8]We accept his submissions on this point and therefore, he having not challenged the forty per cent discount, rather than sending it back to a Tribunal to make calculations which can themselves be made, we have, subject to checking, adjusted the compensatory award made by the Tribunal as sought by Mr Powell. That results as follows. There is no change in the basic award of £410. The loss of earnings figure should be from 8 October 1993, not until 11 February 1995, but until 1 August 1996 at £861 net per month. We make that a total of £29,048 from which must be subtracted the earnings of £6,913, leaving a net loss of earnings of £22,135. From that there must be the forty per cent chance of basic deduction of £8,854, leaving a total of £13,281 to which £180 must be added for the loss of statutory rights and expenses which were shown on both Mr Powell's schedule and the schedule with the decision. This leaves a total of £13,461.[9]We are told by Mr Powell and accept at the time of the award to the Appellant a maximum sum an Employment Tribunal could award, apart from a Basic Award was £11,300, i.e. less than the total we have reached. To £11,300, we therefore add the Basic Award of £410, leaving a grand total of £11,710. In the particular circumstances of this case, we will allow the appeal to the extent of adjusting the grand total awarded from £4,707.66 to £11,710.