EXECUTIVE GROUP LIMITED v MR R POWER [2000] UKEAT 885_00_1212

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 885_00_1212Case No Appeal No. EAT/885/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EXECUTIVE GROUP LIMITEDAPPELLANTMR R POWERRESPONDENT
Before
Mr Justice Bell Ms J Drake Mrs R A VickersDate 12 December 2000
[1]APPEARANCES For the Appellants MR S HILL (Representative) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB MR JUSTICE BELL : This is the respondent company's appeal against the decision of the Employment Tribunal held at Birmingham on 31st March 2000 that the applicant, Mr Power should receive compensation consisting of: "(a) a basic award of £990 (b) [ the maximum ] compensatory award of £12,000" a total of £12,990 to which the recoupment regulations applied. Mr Power commenced employment with Imperial Services Group on 6th March 1995 as Executive Director of Business Development. Director was a courtesy title; he was an employee. On 12th January 1998 Imperial became a wholly owned subsidiary of the appellant company which purchased its shares. Mr Power was dismissed with effect from 1st January 1999. He complained of unfair dismissal. After a hearing on 23rd July 1999, a decision was promulgated on 5th October 1999 that Mr Power was unfairly dismissed. The appellant had imposed targets on Mr Power in breach of his contract of employment and when he refused to accept them and failed to achieve them it dismissed him. Mr Power had also complained of breach of contract in relation to a lease agreement of a motor car which he had entered into in August 1997. He said that it had been agreed by Imperial, for whose agreements the appellant company was responsible, that sums would be paid to him to meet the obligation of the lease agreement until the lease agreement was completed whether or not he remained in employment. The tribunal did not accept that and therefore dismissed his breach of contract claim.[2]The remedies hearing in respect of unfair dismissal did not take place until 31st March 2000. The main issue concerning the proper amount of any compensatory award was whether Mr Power had taken reasonable steps to mitigate his loss: reasonable steps amounting to the steps which any ordinary prudent employee in his position would take. The decision concerning remedies which we have described at the very beginning of this judgment, was promulgated on 14th April 2000 accompanied by "Summary Reasons". The reasons dealt with the compensatory award in one paragraph as follows:
"3 Compensatory Award It is common ground that there has been a net weekly loss of £476.20. We find that from the date of dismissal to the last hearing on 23 July, the applicant had made reasonable efforts to obtain alternative employment. He has produced correspondence (Document A1) during that period relating to job applications. We accept that having regard to the applicant's age and his very specific experience in the cleaning services industry, he has found himself in a difficult and vulnerable position. However, we find he had a lengthy period to find suitable alternative work. Indeed, he does not seek loss of earnings beyond 23 July 1999, and we accept that as a reasonable period of loss of total earnings. We calculate the earnings loss as 29 weeks at £476.20, producing a figure of £13,809.80. We further award compensation for loss of statutory rights of £250.00."
[3]The appellant's advisers requested extended reasons. They received a letter in reply dated 29th June 2000 which said as follows:
"The Chairman, Mr Lloyd directs the following: "
I refer to your request for extended reasons in the remedy decision. There is nothing further that I can usefully add to the summary reasons already given. The decision can be deemed to be in extended reasons form."" So the reasons remained in the summary not to say laconic form which we have already narrated.[4]In the Notice of Appeal and his skeleton argument, Mr Hill makes a number of detailed challenges to the decision that Mr Power had made reasonable efforts to mitigate his loss by attempting to obtain alternative employment. There are two main planks to his argument. The first is that the tribunal failed to give any adequate reasons for its decision in that respect. It failed to explain to the appellant company why it had lost on its arguments in relation to failure to mitigate loss.[5]We consider that that ground of appeal is sufficiently arguable to justify a full inter partes hearing. It may deserve further exploration of the relevant authorities as to the extent of reasons which need to be given, but in any event we consider that it merits airing at a full hearing before this tribunal.[6]The second main plank of the appellant company's argument in respect of the proposed appeal is that the decision of the tribunal on the question of mitigation was perverse on the evidence before it. In his skeleton argument Mr Hill has put forward a number of matters to support this ground of appeal.[7]We find it quite impossible to judge whether there is real merit in this second ground of appeal. Any appellant has a high hurdle to clear in alleging that an Employment Tribunal's decision is perverse. While not doubting Mr Hill's good faith in what he tells us in his skeleton argument, we do not know the extent to which, if at all, Mr Power will accept that Mr Hill's account is a full and accurate account. But having decided that the appeal should go ahead on the first ground we consider it right to allow it to go ahead on the second ground also, knowing that between now and the full hearing attempts can be made to provide the Employment Appeal Tribunal with more information to enable it to judge accurately whether there is merit in the second ground of appeal.[8]We therefore propose to allow the matter to go ahead on both essential grounds of appeal. We direct that the Chairman be asked to produce his Notes of Evidence of the remedies hearing. Skeleton arguments should be produced by both sides after production of the Chairman Notes but not less than 14 days before the hearing of the appeal which should be Category B and listed for one day.