MR A P BOTHAM v DESTEC ENGINEERING LTD [2000] UKEAT 465_00_0707

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 465_00_0707Case No Appeal No. EAT/465/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A P BOTHAMAPPELLANTDESTEC ENGINEERING LTDRESPONDENT
Before
Mr Justice LindsayDate 7 July 2000
[1]APPEARANCES For the Appellant MS I OMAMBALA (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal of Mr A.P.Botham in the matter Botham against Destec Engineering Ltd and we are grateful for Ms Omambala who has appeared today for Mr Botham under the ELAAS scheme. On 5 May 1999 Mr Botham lodged an IT1 for unfair dismissal and unfair selection for redundancy. A colleague of his, Mr Keith Clay, presented an IT1 on 14 June 1999. In both cases the Respondent was Destec and the cases proceeded together although, in fact, they were far from identical cases.[2]There was a hearing before the Chairman, Mr T.R. Capp and two lay members on 2 August and 14 October 1999 at the Employment Tribunal at Nottingham and on 29 October 1999 the decisions, one decision covering both cases, were sent to the parties. The decision itself begins:
"(1) The unanimous decision of the Tribunal is that both Applicants were unfairly dismissed by the Respondent. (2) The Respondent is ordered to pay: (a) to the Applicant, Andrew Botham, £328.93 in compensation; (b) to the Applicant, Keith Clay, £2,295.20 in compensation."
Then there were reasons given which are headed "Summary Reasons".[3]On 8 November 1999 Mr Botham asked for a review of the decision of 29 October 1999. On 30 November 1999 that application for a review was refused on the basis that it had no reasonable prospect of success. On 9 December 1999 Mr Botham lodged a Notice of Appeal at the EAT. After the EAT, as is conventional in these cases, as explained that there was a need for Extended Reasons as a precondition of an appeal, Mr Botham requested the Employment Tribunal that he be given Extended Reasons. We will have to return to the timing of that a little later. But on 2 March Extended Reasons were refused and the appeal before us now is against firstly, the decision of 29 October 1999 that his award was only of £328.93 rather than larger. Secondly, the failure to review that decision and thirdly, the failure to give Extended Reasons. Some of his grounds seek to compare his award with the far greater sum which, as we have seen, was made to his colleague, Mr Clay. That is quite hopeless. It could be, for example, that the award to Mr Clay was excessive. We do not for a moment say that it was but it could have been and it could therefore be that Mr Botham would be seeking to compare his award with an excessive one. One cannot make any useful comparison with another award to any useful effect unless it is inescapably the case that the comparative is, undoubtedly, correct, and one cannot here be sure of that. A third party, such as Mr Botham, cannot say that Mr Clay's award must be right, as it was not appealed, as that fact provides a reason for the Clay award being correct only as between the parties to it, namely Mr Clay and Destec.[4]So we shall not allow to go forward arguments based on a comparison with Mr Clay's award and the Notice of Appeal must be amended to excise those comparative assertions and that, we will call "Amendment (1)."[5]Turning to other matters, Mr Botham gave evidence that he was about to start work as an employed door keeper at £130 a week and that was reflected in the award in his favour because one sees "Less wages received or available (13 weeks at £130 per week) £1,690.00". He had been given job particulars describing the job as "employment" and he had been given those particulars by the Lincoln High Street Jobcentre. It will be remembered that the two days of the Employment Tribunal hearing were 2 August and 14 October 1999.[6]On 2 November 1999 the job particulars were changed by the Jobcentre to describing the job as being "self-employment". Mr Botham, as it would seem, could not have produced evidence of that change at the Employment Tribunal, however diligently he had applied himself to the collection of evidence, as the change had not then occurred. He wished therefore, by way of review, to ask the Employment Tribunal to consider this new position, this new changed evidence. He wrote to the Tribunal saying:
"As I have learnt on returning home after the Tribunal that the position is self-employed, I have no desire to work on this basis as I have never been, or wish to be 'self-employed'. If I could please bring to your attention this fact, I would not be obliged under Employment / Social Security Law, to take such a job in order to safeguard Job Seekers Allowance, had I failed to accept this job and subsequently claimed benefit, I would not be penalised for not accepting this position due to its self-employed status. To work on a self-employed basis, I understand that I am responsible for paying my own National Insurance Contributions and Income Tax; also I would need to employ an Accountant to deal with my earnings and bookkeeping. Furthermore I do not have any knowledge of working in a self-employed capacity, and have always worked for an employer."
The Tribunal replied to that:
"1. It is the opinion of the Chairman that the application has no reasonable prospect of success. 2. The Applicant gave evidence at the Remedy Hearing that he was about to start paid employment. He subsequently declined the work when he discovered that he was to be treated as self employed. He requests a review because of these changed circumstances. 3 The Applicant has a duty to mitigate his losses, and it is immaterial whether such mitigation arises from employment or a position of self employment."
[7]There are, it seems to us, arguably two errors in that refusal to review. Firstly, as a rather crude expression of the Rule, mitigation does not generally require a man to put his hand in his pocket in order to mitigate. To get the door keeper's job it has now transpired (quite when this transpired is not clear) that applicants would have to have had a licence from the Council. The description of the job that we have says: "Requires that applicants must have a licence, which can be obtained from the local Council at a cost of between £15 and £40 and takes approximately 3 – 6 weeks. It will involve Police checks and training courses." [the position is self-employed].[8]So for some three to six weeks it could have been the position that Mr Botham would have had to train, thus, no doubt, losing employment during that period and also had to find between £15 and £40. It is at least arguable, as it seems to us, that in such circumstances he was not under a duty to mitigate by accepting that job. Secondly, it seems to us arguable that the change from employment, which is what Mr Botham had always previously enjoyed, to self employment, again justified there being no duty to accept the job by way of mitigation. The duty is only to take reasonable steps to mitigate and it is arguable that a wholesale change of working status could be unreasonable to be expected of him. We see the appeal against the refusal to review as proper to go to a full hearing but the Notice of Appeal must be amended to include the ground which we have just described and that we will call "Amendment (2)".[9]As for the substantive decision itself, we need to approach it on two alternative approaches. Firstly, let it be taken that the Tribunal below had before it the job description of the door keeper's job. If that was the case then deductions from the prospective earnings of Mr Botham, which reduced the award would arguably have needed to be made to reflect the fact that one or two things needed to be taken into account, namely the cost to him of his obtaining the door keeper's job and possibly a further deduction for the three to six weeks' training which he would need, that partly depending upon when it was that the local Council could accept him for training. That approach might lead to an arguable ground for an appeal against the decision of 29 October 1999 and we will call that "The possible main ground". Alternatively, though, let it be supposed that the Tribunal did not have the job description before them, it may be (and we put it no higher than that, we are only concerned at this stage with what is arguable) that Mr Botham, depending on what knowledge he had of the Jobcentre's discussions and the employer's discussions or prospective employer's discussions at the time, might be able to satisfy the Ladd v Marshall test as to the reception of new late evidence. That would strengthen his case on the review by adding a point which otherwise he would not have and we will call that "The possible review ground". We cannot be sure which is the proper approach but either approach leads to an enhancement of some part of Mr Botham's case. But again the Notice of Appeal will require amendment.[10]We allow the appeal against the substantive decision to proceed by way of amended Notice of Appeal. What can be added is either the possible main ground, as we have described it, or the possible review ground. If, upon further consideration, either is appropriate they can be incorporated and we would call that amendment "Amendment (3)".[11]As to the refusal to give Extended Reasons, the only reason given for the refusal was that the application was out of time. The letter of 2 March from the Tribunal said (speaking of a Chairman to whom the matter had been referred):
"He has refused your request for Extended Reasons as we have no record of any previous request and the application is now out of time."
[12]However, Mr Botham at earlier stages had, he said, been told firstly that the Tribunal had mislaid his case file, secondly, that an earlier fax of his requesting Extended Reasons had been found and also that the words "Summary Reasons" might have been merely a typing error and that the reasons, which, after all, are some five pages long, had all along been intended to be Extended Reasons. As to this subject Mr Botham is to swear an affidavit and lodge it with the EAT and, of course, with the other side, giving, preferably in chronological order, details of any communications with the Employment Tribunal that he would wish to have considered by the EAT in support of his claim that he had lodged a request for Extended Reasons that was in time, alternatively, that he understood that a request was best postponed until the lost papers were found, if that is to be his allegation.[13]We could, I suppose, withhold there being a full hearing until a further preliminary hearing but the more convenient course is to allow the appeal as to Extended Reasons to go to a full hearing and for it to be then considered in the light of the affidavit which Mr Botham by then has sworn and the Chairman's comments thereon because, in the ordinary way, we would expect the affidavit, once sworn, to be sent to the Chairman for his comments. Again, though, the Notice of Appeal will need amendment to set out the grounds which Mr Botham has as to the application for Extended Reasons not being out of time or as to some communication with the Employment Tribunal having had some material affect on the timing of his application for Extended Reasons and that we call "Amendment (4)".[14]It would be as well for other points in Mr Botham's case to be covered by the same affidavit that we have already described. He should swear as to such matters on which he wishes to rely in relation to, firstly, the nature of the door keeper's job as explained to him at the Jobcentre. Second, the information as to that job which he then laid before the Employment Tribunal at the hearing, in particular whether the need for expense and delay and the acquisition of the required licence was put to the Tribunal at the main hearing. If that latter information was not put to the Employment Tribunal, why it was not and when he first learned of the need for and costs of and delay inherent in acquiring the door keeper's licence. What job interviews and indications he had as to the prospect of the door keeper job and when and what indications he was given as to the certainty or otherwise of being awarded the job or as to the need for a Council licence.[15]We give leave within 21 days after the Employment Tribunal have sent out a transcript of this judgment to Mr Botham to amend the Notice of Appeal in such of the ways that we have identified by calling them "Amendments (1) to (4)". He can amend in such of those ways as on mature reflection are considered appropriate.[16]The Notice of Appeal as so amended is to go to a full hearing. If the amended Notice of Appeal is found by the EAT at the full hearing to have strayed beyond the grounds that we have described in the course of talking of Amendments (1) to (4), well, then, the EAT will be at liberty either to delete such grounds or to allow them to proceed, whichever it thinks proper.[17]The affidavit we have described is also to be sworn and lodged within the same 21 day period and, of course, sent not only to the Respondents but to the Chairman who is to be invited to comment on it. Skeleton arguments to be lodged at the EAT not less than 14 days before the date fixed for the full hearing.[18]If, on seeing the affidavit, the Respondent wishes to swear an Answer, it is to do so within 14 days thereafter with liberty to the Appellant to reply within seven days after his receipt of the Respondents' affidavit. If, on seeing the amendments made to the Notice of Appeal, the Respondents wish to oppose the making of any such amendments then the leave to amend which we have so far given will be taken to have been merely provisional and a directions hearing would then be necessary to rule on how far, if at all, the leave which we have given provisionally should come final and that directions hearing could also deal with any other procedural or interlocutory matters which, by then, need to be resolved. But we have given the period of 21 days from the sending out of the transcript of this judgment to Mr Botham in order to give a decent spell during which the ramifications of the case can be considered and we once again revert to thanking Ms Omambala for the help she has given us under the ELAAS scheme.