MRS G FITCH v DURLSTON COURT SCHOOL TRUST [2001] UKEAT 1121_00_0512

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1121_00_0512

Case No Appeal No. EAT/1121/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS G FITCHAPPELLANT

DURLSTON COURT SCHOOL TRUSTRESPONDENT

Before

His Honour Judge D Pugsley Miss C Holroyd Mr D Norman

Date 5 December 2001

[1]APPEARANCES For the Appellant MR P FITCH (Husband) For the Respondent MR R HOWARD (of Counsel) Instructed By: Messrs Rawlins Day Solicitors Rowland House Hinton Road Bournemouth Dorset BH1 2EG JUDGE D PUGSLEY : The Appellant in this case seeks to impugn the decision of the Employment Tribunal concerning the compensation which was awarded to her consequent upon the Tribunal finding that she was unfairly dismissed.

[2]The Tribunal had found that Mrs Fitch had been unfairly dismissed. They set out their reasons in an extended decision. The matter came before Mr Recorder Jeffrey Burke QC on a preliminary hearing of this Tribunal and leave was given on two grounds. That is set out at page 33k of the bundle in the amended Notice of Appeal.

[3]Having found that the Applicant had been constructively dismissed in April 1999 and the dismissal was unfair, the Tribunal decided that the Appellant had made no attempt to mitigate her loss and it was most likely she would have found other comparable employment commencing in June 1999. She therefore believes this decision was perverse given the extraordinary circumstances surrounding her resignation and no reasonable Tribunal would have arrived at that conclusion. The second ground is that having found the employer was in breach of contract with regard to the dismissal, the Tribunal erred in law in that the damages for the breach of contract were not ascertained and set out on one side prior to the Basic Award and the Compensatory award being ascertained.

[4]The reality is that in English law, as opposed to some other jurisdictions, we place considerable reliance on the decision of Courts and Tribunals reached after listening to evidence, evaluating the evidence, not merely written statements but actually seeing and hearing the witnesses give evidence. It is trite to say that each case has its own chemistry. It is also right, as Lord Hoffman made clear in the family case of Piglowska v Piglowski

[1999] 3 All ER 632

at 643, that appellate courts should not lightly intervene in the decisions made by lower courts. Even the best drafted decision is but an incomplete attempt to convey all reasons and that Courts sitting as Appeal Courts should be very careful before disturbing findings by those who have made the decision, when they have had the opportunity of hearing the parties and absorbing the particular chemistry of a case. Those observations apply with even greater force when the decision-making Tribunal is not merely a lawyer holding judicial office but has within it two Members, both of whom will have experience in a wide range of industrial issues.

[5]At the hearing the Tribunal set out the various tests that are required to be set out, that the amount should be just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of dismissal in as far as that loss is attributed to action taken by the employer. The Tribunal then in paragraph 10 correctly state that:

"The dismissed employee's duty to mitigate a loss will be fulfilled if the employee can be said to have acted as a reasonable person would do if the employee had no hope of seeking compensation from the previous employer. This is the approach suggested by Sir John Donaldson in the case of Archbold Freightage Ltd v Wilson [1974] IRLR 10 NIRC. Whether an employee has done enough to fulfil the duty to mitigate depends on the circumstances of each case and is to be considered subjectively. The test is whether the employee's conduct is reasonable on the facts of the case. We asked ourselves the question whether the Applicant in this case had taken reasonable steps to minimise her loss. In all of this the burden of proof lies on the Respondent and it is the Respondent in this case who has alleged that the Applicant failed to mitigate her loss."

That is an excerpt from paragraph 10 of the Decision. We can find no error of law in that. The Tribunal then in paragraph 11 summed the position up thus:

"Thus, we have given careful consideration to the reasons given by the Applicant for not applying for other employment and these were as follows: (a) That, as a result of the Respondent's breach of contract, which the Tribunal found resulted in the Applicant's resignation, she was psychologically not in a position to seek another job; she felt humiliated and very despondent. She did not, however, receive medical treatment. (b) She had to undertake a good deal of preparation for the Tribunal hearing. (c) She did not feel able to commit herself totally to a full-time job. (d) She believed that she still had counts of misconduct on her file with the Respondent, so that she did not feel able to apply for a post until the conclusion of the Tribunal hearing. (e) She not received a reference from the Respondent. On the other hand, she had not sought one."

[6]The Tribunal then sum up their conclusions. They point out in paragraph 12 that the Applicant's professional activities were limited to a small amount of tutoring and a preparation of a software reading programme. That seems to be an error. It seems it was the preparation of a manual of how to teach to read rather than the computer programme. The Applicant had earned £200 from that during the summer holiday in 1999. They pointed out that the Applicant does not seem to have given any consideration to the possibility of supply teaching, either in the state or the private sector. She agreed that all private schools have a register of supplied teachers, but she did not put herself on any list. She says now she will be applying to state schools as well as private schools. The Tribunal noted she had no experience of state schools for about 20 years, but in their view this could not excuse her for making no attempt to securing employment.

[7]The Respondent put in a bundle that showed various advertisements over the relevant period in areas not unadjacent to where had she lived. The Tribunal came to this view at paragraphs 15 and 16: "15 We have carefully considered the reasons given by the Applicant for her inactivity in seeking employment, but do not view them as a reasonable explanation for a total failure to seek employment over the relevant period. Her conduct was not reasonable in that she deliberately made herself unavailable for alternative employment. Her eyes were shut to any possibility. 16 Having considered all the evidence most carefully we are of the view that, had the Applicant sought employment shortly after her dismissal as she should have done, it is most likely that she would have found other comparable employment commencing in September 1999. There may have been a succession of supply positions leading to a full position, but whatever precisely would have happened we believe that it was more likely than not that, had she made a reasonable attempt to mitigate her loss, the Applicant would have found herself in comparable employment by September 1999.

[8]We find it quite impossible to say there is any error of law or any conclusion which could, on the true test of that word, be said to be perverse. We have considered the matter very carefully. This was a decision that was open to that Tribunal. It may be another Tribunal may have allowed longer, another Tribunal may have allowed less, that is not a test of perversity. The test of perversity in plain man's language is "Good Lord, that is wrong, that is nonsense, that is unsupportable". That is not the reaction on reading the reasons that any of us feel. We believe this Tribunal considered it appropriately. Whether or not we would have reached the same decision is an irrelevance. We cannot say that this was not a decision open to the members of that Tribunal and it is not our task to second-guess what we would have done in a case where we have not heard the evidence and not been intimately and integrally involved in the decision-making process. We therefore do not allow the appeal on the ground of perversity.

[9]The second matter we are bound to say is somewhat academic. The purpose and point of compensation is to compensate an Applicant for what has been lost. We accept that the Applicant was entitled to a breach of contract claim by way of damages in respect of the period from her resignation until 31 August. That is how the Tribunal found it. But they said, as this was dealt with by way of a compensatory award, no further sum is due under the breach of contract claim. We have to say that we think that any ground of appeal based on other than that is unarguable unless it were the case that we were to have found that the period that they allowed under the unfair dismissal was set aside as woefully inadequate. We do not think that one can maintain an argument that in some way one can be compensated twice for the same period and the period of her money in lieu of notice was subsumed within the finding of fact that she was entitled to only be awarded compensation for the period the Tribunal found. As the judgment at the preliminary hearing makes clear (at paragraph 12) the ground really rests on the first ground of appeal succeeding.

[10]Happily it seems (what we now know has had no impact on our decision) that the business she founded is doing well. But, nevertheless, on the particular facts of this case we do not feel that we can say that either of these two grounds are sustainable and therefore the appeal must be dismissed.