MR D R GOULD v (1) THE GOVERNORS OF HAILEYBURY & IMPERIAL SERVICE COLLEGE (2) THE GOVERNORS OF LAMBROOK HAILEYBURY SCHOOL [2001] UKEAT 1191_00_0606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1191_00_0606Case No Appeal No. EAT/1191/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D R GOULDAPPELLANT(1) THE GOVERNORS OF HAILEYBURY & IMPERIAL SERVICE COLLEGE (2) THE GOVERNORS OF LAMBROOK HAILEYBURY SCHOOLRESPONDENT
Before
Mr Justice LindsayDate 6 June 2001
[1]APPEARANCES For the Appellant IN PERSON MR JUSTICE LINDSAY (PRESIDENT) We have before us, by way of a preliminary hearing, a fifth appeal in the matter Gould against The Governors of Haileybury & Imperial Service College and The Governors of Lambrook Haileybury School. This particular appeal is headed EAT/1191/00 and it goes only to remedies.[2]On 8 August 2000 there were sent to the parties a decision and Extended Reasons as to remedies. On 17 September Mr Gould dated his Notice of Appeal; this is not his only Notice of Appeal as to this single remedies decision and we have dealt with some other aspects of remedies appeals earlier in the matter that we have branded "C", which was EAT/1057/00. But, taking the points that are being raised in the Notice of Appeal now, but in a different order, the first of them, 6.4 in Mr Gould's categorisation is, "Benefits in kind and perks that have not been allowed by the tribunal " and one of those suggested losses is the loss of the ability to go on a ski trip. As a schoolmaster at Haileybury, Mr Gould was put in charge of pupils on a ski trip each year. There was no contractual term relating to this, either to oblige him to go if asked or to oblige the school to ask him to go. Presumably, whether he was selected to accompany the party would depend in part on whether he had been found satisfactory in the course of the year in question in terms of his relations with and authority over the pupils and whether he had been found satisfactory in the past as the master having control of the party, whether he was able and willing to go and whether there were any better competitors for the rôle. What he lost was obviously not, as it would seem to us, the benefit of a ski trip but the chance of a ski trip and, of course, he gained the absence of being responsible for the conduct of the party and any personal outgoings that would be connected with the trip if he went upon it.[3]It is at lowest arguable that when the benefit actually enjoyed is understood and his loss of it by reason of an unfair dismissal comes to be considered, it is no answer merely to say that there was no contractual entitlement to that benefit; see Harvey D1, 2589-2601. It is thus, as it seems to us, arguable , and we would want to underline the word arguable, that the Employment Tribunal's robust paragraph 2(g) is a little too robust. What it says is:- "The applicant claims that he should be compensated in respect of the ski trip which he undertook for the School each year when he was in charge of a party of pupils for the purpose. We do not accept for one moment that he should be compensated in this way. It was not a term of his contract that he should have the benefit of some skiing holiday. The holiday was not for his benefit but for the purpose of his being in charge of the pupils on such an expedition. The fact that he derived pleasure from such an activity at the cost of the School is neither here nor there. Not until he became employed at Sussex House did the applicant go on a ski trip; he did not do this during 1998 when unemployed."[4]Although the sum in question might well be relatively small (especially when it is accepted, if it is, that what he lost was merely the chance of a ski trip rather than necessarily a ski trip and that such chance would need to be evaluated in some percentage or similar terms) nonetheless, as we say, the Tribunal's reasoning that there was no contract on the point and that therefore there was no loss on the point seems to us a little too robust and we permit this to go a full hearing, although it may be met by a counter-argument that we will need to discuss below.[5]In much the same category is the heading Sports facilities, which is 6.4b). Mr Gould, a player of squash and tennis, lost the chance of being able for a time to continue to be able to play squash and tennis for free. Although the cost of replacement is quite commonly the yardstick by which such losses are measured, it does not seem to us to follow that the cash value of the compensation for that loss is necessarily to be measured by reference to what Mr Gould spent thereafter (that is to say, after the unfair dismissal) on the use of such facilities. For example, if a man was so impoverished after a dismissal that he could not afford to play at all, that approach, if right, would quantify his loss at zero and yet plainly some form of loss or damage would have been suffered by such a person. Thus we see there to be an arguable error of law in the Employment Tribunal's approach in its paragraph 2h. Again, we permit the matter to go to a full hearing, although, again, there may be a counter-argument that we may come on to. So that goes to a full hearing.[6]Cleaning is another heading. It is in fact 6.4c). For corresponding reasons the Employment Tribunal's approach in its paragraph 2k) is arguably in error of law. The chance of the benefit of having one's accommodation being cleaned and having that benefit continuing was lost. Of course, if it is clear that on the balance of probabilities Mr Gould would not have laid out money in cleaning whatever new accommodation he moved to, then, perhaps, that needs to be taken into account but we do see there is arguable error of law in the approach to the loss of the benefit of having one's premises cleaned.[7]Accommodation is 6.5 but there was no contractual entitlement to accommodation but similarly, it seems to us, that there is arguable error of law in this area and so that may go to a full hearing, again subject to a possible counter-argument.[8]6.6 is Food . Mr Gould was entitled to board only during term time. The Employment Tribunal computed the academic year to consist of 7 months actual term time. Given school holidays and half-term or other breaks, we cannot be sure that that is wrong. Mr Gould says that the figure should have been 9 months approximately. What the truth is we are not really better informed about. But we do not suppose that any master eats in school every single meal he is entitled to or that Mr Gould did so. Mr Gould only lost the future prospect of eating – in such meals as he would have eaten - in. He would have had to pay £87 a term to be able to eat in. To fix a daily rate of loss and then multiply it by the relevant number of days seems to us a not improper attempt to quantify the loss and, given that Mr Gould was unlikely never to have eaten out and unlikely to have eaten in on every single occasion when he could have eaten in, a figure of 7 months seems to us not improper as an adopted multiplier in what is necessarily a somewhat rough and ready exercise. On the evidence which the Employment Tribunal heard, it took the view that £6 a day was an appropriate figure. That, after deduction of 3 x £87, led to an award of £1016 which the Tribunal said:
"we consider to be a fair estimate of the loss of this subsidised benefit"
. Mr Gould, in our view, rightly criticises references to what was actually spent on food by him after his dismissal and the references to meals from his parents and his girlfriend are also criticised by him. However, although the Employment Tribunal mentions them, they do not seem to have figured in the emergence of the £6 a day rate for the 7 months. Mr Gould asserts that the 3 x £87, namely £261, should not have been deducted but the Employment Tribunal expressly held:
"He was entitled to full board during term time. This was subsidised by the School in that the applicant had to pay no more than £87 each term in respect of this provision."
It has to be remembered that the Employment Tribunal is the master of fact. They hear the evidence; we have no Chairman's notes; we have no note of what was said to them by either side in this matter. It is very difficult to discern any error of law in the food computation. There is no reason for us to suppose that the figure that the Tribunal eventually came up with was not the best that they could do on what was, perhaps, inadequate evidence laid before them. We are unable to say that there was an error of law in that part of the Tribunal's reasoning and so the "food" heading is dismissed.[9]Removal expenses were dealt with as follows:
"The applicant claimed a number of general expenses of travel in respect of removing his belongings from his School accommodation and taking them elsewhere as well as expenses in relation to seeking other employment. It is difficult to analyse all of these precisely from the evidence which we have, but on balance we think it appropriate to take a "broad brush" approach and we award a figure of £250 in this respect."
[10]Simply to assert, as Mr Gould does, that that is inconsistent with the evidence is not to assert a material error of law, even an arguable one. He gives us no chapter and verse of the oral or written evidence in the area. He tells us that a spreadsheet was produced but we have not got the spreadsheet. He had not sent it in advance and he has not brought it with him. It is, of course, to be remembered that an Employment Tribunal can properly choose not to accept even evidence which is unchallenged. They are the masters of fact, as we have said, and we have no reason to regard the broad brush approach which they adopted as here representing any error of law and so this aspect, too, is dismissed.[11]Another aspect is the heading of Costs ; it is heading 6.8. Here one needs to bear in mind Employment Tribunal Rule 12(1). Where, in the opinion of the Tribunal, " a party has in bringing or conducting the proceedings acted frivolously, vexatiously, abusively, disruptively or otherwise unreasonably, the Tribunal may [and one notices the word "may", it is a classic way of introducing a discretion] make an order containing an award against that party in respect of the costs incurred by another party". So, in order to award the costs against the School, the Employment Tribunal would, further, have had to have held that the schools' conduct in conducting their responses to Mr Gould's claims had been frivolous, vexatious, abusive, disruptive or otherwise unreasonable and then, secondly, to have examined the discretion thus conferred upon them and to have exercised it in Mr Gould's favour. It is, within those limits, a completely unfettered discretion, which makes it extremely difficult for an appellant to appeal against it because, of course, the appeal has to be limited to an error of law. In effect, Mr Gould would need to show that the Tribunal had taken into account that which they should not have taken into account or had left out of account that which should have been taken into account or that they had otherwise erred in some material principle. What the Tribunal said was this, of Mr Gould:
"He maintains that the respondent should have admitted unfair dismissal at the outset and not at the stage when they did, because the dismissal was patently unfair. We reject the applicant's claim absolutely because whatever he might say, the respondents had to defend a comprehensive and detailed claim for sex discrimination and victimisation. They defended those claims successfully. The unfair dismissal claim barely featured due to the admission by the respondents. The breach of contract claim was not unreasonably contested. There can be no question of any award for costs."
[12]We have looked at Mr Gould's Notice of Appeal in this area but we do not find that he has been able to identify an error of law in the exercise of the Tribunal's discretion on costs, assuming that the discretion arose, nor in their presumably concluding that here there had been no frivolous, vexatious, abusive, disruptive or otherwise unreasonable conduct. Mr Gould cites the County Court Practice but fails to note that the Rules in the Employment Tribunal are quite different from those in the County Court. There is, in the Employment Tribunals, no tendency for costs generally to follow the event and, even if there was, of course, it would need to be remembered that Mr Gould had by no means won every "event". We do not see any arguable error of law in the area of costs and we dismiss that here and now.[13]We mentioned that we were taking Mr Gould's points in a different order than that in which he set them out. 6.3 was headed, Sussex House – decision that losses from 1/9/98 are too remote . On 1 September 1998, Mr Gould began a job at a remuneration substantially higher than that which he had been paid at Haileybury although the attendant perks were nothing like as beneficial. The Employment Tribunal concluded that overall the benefits for the new job were comparable to those he had been receiving from Haileybury. The Employment Tribunal thus took the view that losses of direct remuneration claimed for periods after the new job had begun were not such as properly to be laid at the door of Haileybury under section 123 of the 1996 Act. The fact that Mr Gould chose freely to resign from the new job after a year, was, said the Employment Tribunal, immaterial:
"In effect the chain of causation was broken when the applicant commenced employment with Sussex House."
The Employment Tribunal also said:
"In our view there was a clear break as at 1 September 1999. The respondents could not, in the circumstances, be responsible for any loss beyond that date."
That, in a way, overstates the Employment Tribunal's position because it plainly did look at the possibilities of loss in terms of food, accommodation, cleaning and so on, after the 1 September 1998. The Employment Tribunal itself stopped only the computation of loss of direct financial remuneration as at that date, as one can see from the figures given in their award where they say on what is on page 18:
"Compensatory award for the period 1 May to 31 August 1998 (4 months) net wage. The Prescribed Element £5,796.28"
It was only direct financial remuneration that stopped as at that date.[14]Mr Gould raises quite a number of points in this area. He argues as to the quality and content of a reference he was given, whether he wanted to stay on in teaching, whether or not he could fairly be taken to have been disillusioned with teaching, and whether the evidence was inconsistent. But none of these points touches the central point that in September 1998 he took up a job paying more than he had been earning at Haileybury. If he had been able to prove to the Employment Tribunal that his giving up the new job was truly a not unreasonable consequence of his unfair dismissal by Haileybury or otherwise attributable to action taken by his former employer, he would have had some argument, but mere assertion and disbelieved evidence were not enough. Section 123 limits the compensatory award to loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer. We see no arguable error of law here.[15]Indeed, and this is the possible counter-argument to which we have referred earlier, if, at the full hearing at the EAT or if, thereafter, there is to be a remission following that full hearing, it becomes necessary for reconsideration of quantification of the loss of non-salary benefits, it will become necessary to reflect on the Employment Tribunal's conclusion, which was as follows:
"Whilst we appreciate that it would be more expensive for the applicant to live in London than in Windsor where he had the advantages of accommodation at his School with subsidised meals, which was not the case at Sussex House, nevertheless there is such a differential in the incomes in the two establishments that we believe that the applicant did in fact receive the benefit of comparable employment in financial terms when he joined Sussex House."
When that is taken into account, it could be taken to be an indication that to compensate separately for non-salary benefits would involve the provision of compensating for something which was not lost, in the sense that, given the salary at Sussex House and the increment in that salary over what had been paid at Haileybury, that difference itself compensated for the loss of non-salary benefits. That is what the conclusion that we have just cited seems to suggest. That will be a factor which may be necessary to be considered at a full hearing. However, limiting ourselves to the issue of whether the Employment Tribunal could, without error of law, take the 1 September 1998 as a break in causation and hence put an end to compensatable loss of salary, we see no error of law in the Tribunal's approach and hence dismiss the appeal.[16]The next heading is Interest . On that the Tribunal said:
"No interest is payable on unfair dismissal compensatory awards."
We do not expect the Employment Tribunal to be intending there to say that no interest is payable for periods after their award if the award remains unpaid - see Employment Tribunal Interest Order 1990. However, when a Tribunal has the task of compensating for the loss of sums that would not ordinarily be paid in a lump but rather would be paid bit by bit over a period (such as salaries) if the Tribunal were to consider that they had no right to discount by reason of their compensating by way of a lump sum or no right to compensate for payment not having been made over a period by taking into account interest over a period, that would seem to us to be an arguable error of law. It is rather hard to know precisely what they had in mind because their conclusion was so very terse and quite how Mr Gould will put the argument will remain to be seen but we are not at all sure that there is no error of law in their dealing with interest in the way that they did and so that is a ground that can go forward to the full hearing.[17]Thus we have allowed some matters to go forward and others not and the best course for Mr Gould will be to reflect on the transcript when he obtains it and to take the matter forward in that way. Again, as I think we gave directions in the other case, it would be appropriate that the Gould appeals should all be heard together so that they come on together and that, again, the skeleton arguments should be exchanged not less than 14 days before the date fixed for the hearing .