MS M V SHAH v LONDON BOROUGH OF ISLINGTON [2001] UKEAT 1375_99_2901

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1375_99_2901Case No Appeal No. EAT/1375/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M V SHAHAPPELLANTLONDON BOROUGH OF ISLINGTONRESPONDENT
Before
His Honour Judge CollinsDate 29 January 2001
[1]APPEARANCES For the Appellant MR M EGAN (Of Counsel) Instructed by Messrs Shah 168 Greenford Road Sudbury Hill Middlesex HA1 3QZ For the Respondent SUZANNE McKIE (Of Counsel) Instructed by Legal Department London Borough of Islington Town Hall 222 Upper Street London N1 1XR JUDGE COLLINS This is an appeal against the decision of an Employment Tribunal sitting at London (North) on a remedies hearing. The extended reasons were promulgated on 9 September 1999. The decision was that the Appellant had contributed to her own dismissal to the extent of 100% and also that she had failed to mitigate any loss that she might have sustained. At an earlier hearing in relation to which the Tribunal's extended reasons had been promulgated on 5 March 1999 they decided that she had been unfairly dismissed.[2]The essential circumstances were that she had been employed since 26 February 1990 as an audio secretary in the London Borough of Islington's Housing Department and by the time of her dismissal she had been promoted to Scale 5. The Tribunal held that she had been dismissed by reason of redundancy and at the time of her dismissal or prior to dismissal she had been, according to the Tribunal, ring fenced for one of the possible jobs at Grade 5 that would be retained after the redundancy.[3]However, they held that even though that job was available for her, her dismissal was unfair because one of the posts which the Appellant would have been interested in occupying was not internally advertised but was given instead to an agency employee. The Tribunal held that it was unfair to the Appellant who was a long standing employee not to be given at least the same opportunity of applying for that post as a temporary secretary. The essential findings of fact made by the Tribunal at the remedies hearing are set out in paragraph 13 of their reasons. We ought to state that a good deal of the time of the Tribunal at that hearing was occupied by consideration of the Appellant's application for reinstatement or re-engagement. They declined to make an order for reinstatement or re-engagement and there is no appeal in relation to that decision. So far as the question with which we are concerned paragraph 13 states as follows:
"We find that if the Applicant had co-operated with the Respondents she would have obtained another job within the Council under their Redeployment Scheme in grade 5. She failed to co-operate, she failed to fill in her Personal Profile form and failed to attend the interview or apply for the jobs and therefore resulted in her dismissal. This in our opinion, amounts to contribution and we would reduce such compensation by 100%. In our opinion the dismissal came about due to the Applicant's non-co-operation."
[4]There is a summary of the findings of fact which had been made in more detail in the original liability hearing. In paragraph 2(j) of that decision the Tribunal referred to the Respondents' evidence that the Applicant would certainly have been appointed to one of the posts if she had gone for the interview and applied in the proper way and it is clear that the Tribunal accepted that evidence and indeed that it was not challenged before the Tribunal.[5]This Appeal Tribunal at a preliminary hearing ordered that the matter should proceed to a full hearing on 3 grounds. Firstly, whether the Tribunal were right in law or adopted the correct legal test in determining that the Appellant had contributed to the extent of 100% to her own dismissal in the terms of s123(6) of the Employment Rights Act 1996. They also ordered that the full hearing should consider two aspects of the Tribunal's decision on mitigation of loss. Firstly, failure to mitigate by accepting a job in November 1998, 2 months after her dismissal and secondly mitigation in relation to non-co-operation in the redeployment exercise.[6]So far as the first failure to mitigate is concerned there is no reference in the Tribunal's decision to the facts on which the conclusion is based. There was plainly some evidence about a job being offered to the Appellant in November 1998 but it is quite unclear from the Tribunal's reasons what the facts were in relation to the second aspect of failure to mitigate. Mr Egan in his skeleton argument has drawn attention to decisions of this Tribunal dealing with questions of mitigation prior to dismissal. He did not pursue that in oral argument before us and it is clear that those issues are more properly subsumed in the other areas which were addressed to us in the course of argument.[7]Section 123 (1) Employment Rights Act 1996 reads as follows:
"Subject to the provisions of this section and other sections which are mentioned the amount of the compensatory award should be such amount the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequences of dismissal in so far as that loss is attributable to action taken by the employer."
It has to be remarked that nowhere in its reasons does the Tribunal address itself direct to s123(1) even though that is the logical starting point for any consideration of a compensatory award. It is no doubt because of the Tribunal's omission to deal with s123(1) that it was not dealt with by either Counsel in their skeleton argument.[8]However, we drew Counsels' attention to this subsection and gave them an opportunity of considering it so that they could address us on the point. And it does seem to us that the first thing we have to consider is whether the findings of fact made by the Tribunal and by which we are bound give an inevitable indication of what their decision would have been had they considered s123(1).[9]If the decision they would have made appears to us to be inevitable from their findings of fact, then it would be unnecessary for us to remit the case to the Tribunal for consideration of s123(1). If there is any doubt as to what their answer might have been then depending on our views about the appeal under s123(6) the case might have to be remitted.[10]The Tribunal would have had to consider as they do under s123(6) what is just and equitable as the touchstone of any compensatory award. In this case the Tribunal would have had to focus on the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. It seems to us that the Tribunal's findings of fact which I have already recited in the course of this judgment make it clear that the Tribunal took the view that any loss sustained by the Appellant was not attributable to the unfair dismissal.[11]Any loss sustained by the Appellant was in our judgment in the opinion of the Tribunal clearly attributable to the fact that the Appellant had not taken the opportunity of applying for a job which was available to her on the same terms and which she would have obtained had she applied for it and co-operated with the process. Or to put it another way, the Tribunal would have held that having regard to those factors it was not just and equitable to make a compensatory award.[12]In our judgment it is possible for this appeal to be disposed of on that ground and that ground alone. However, we also turn to consider the position under s123(6) where the Tribunal had to consider whether the dismissal was to any extent caused or contributed to by any action of the complainant and if so had to reduce the amount of the compensatory award by such proportion as it considered just and equitable having regard to that finding.[13]Mr Egan concedes that the conduct of the Appellant is properly to be considered as blameworthy in some degree for the purposes of s123(6). However, he rightly points out on the authorities and as a matter of principle that where a dismissal has been held to be unfair the number of occasions when it can properly be found that the employee had entirely caused or contributed to her own dismissal must be very rare indeed. As a general proposition we have no difficulty in accepting Mr Egan's submission. However, he accepts on the authorities that it is open to a Tribunal as a matter of law to hold, where the facts justify it, that the sole cause of the dismissal, even where the dismissal is unfair, was an employee's own conduct. It is not necessary to look any further than the speech of Viscount Dilhorne in Devis and Sons Ltd v Atkins (1977) ICR 662 for that proposition. He submits that on a proper reading of paragraph 13 of the reasons of the Tribunal they have not found that the Appellant's conduct was the sole cause of her dismissal. It follows in his submission that they did not have the necessary legal substance to deprive her of the whole of any compensation that she might otherwise have been entitled to.[14]In our judgment paragraph 13 is on a proper and sensible reading of the wording clear. The Tribunal held that dismissal came about because of the Appellant's failure to co-operate and the contribution in their judgment is 100%. In our judgment therefore it is simply a question of semantics to criticise paragraph 13 for not stating in express terms that the sole reason for her dismissal was her non-co-operation. In our judgment that is exactly what the Tribunal was saying but in slightly different words.[15]Although it is a rare and unusual case, in our judgment the Tribunal were entitled to find that the Appellant's dismissal was brought about entirely by her own conduct.[16]It does not appear from the reasons of the Tribunal given in relation to either hearing that there was any explanation of any substance, if at all, given by Miss Shah for not applying for the Grade 5 job which was ring fenced for her so that her sense of grievance may in the circumstances be somewhat misplaced.[17]For those reasons in our judgment there is no substance in the points which have been raised on this appeal and we dismiss it.