MR A P BOTHAM v DESTEC ENGINEERING LTD [2001] UKEAT 465_00_1110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 465_00_1110Case No Appeal No. EAT/465/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A P BOTHAMAPPELLANTDESTEC ENGINEERING LTDRESPONDENT
Before
His Honour Judge Peter Clark Ms J Drake Mr I EzekielDate 11 October 2001
[1]APPEARANCES For the Appellant The Appellant in person For the Respondent MISS J BUTLER (of Counsel) Instructed by: Mr P S Kirk Messrs Wilkin Chapman Epton Blades Solicitors Bank Street Lincoln LN2 1DR JUDGE PETER CLARK On 5 May 1999 the Appellant, Mr Botham, presented an Originating Application to the Nottingham Employment Tribunal complaining of unfair dismissal by his former employer, the Respondent Destec Engineering Ltd. The claim was resisted by the Respondent, who contended that the Appellant had been fairly dismissed by reason of redundancy.[2]The Appellant's complaint, together with that of a fellow-employee, Mr Clay, came on for hearing before a Tribunal chaired by Mr T R Capp. The cases were heard over two days on 2 August and 14 October 1999.[3]Both claims succeeded, the Tribunal finding that the Respondent, in dismissing both men for redundancy, ought to have considered both of them for alternative employment in a lower grade. Since there was only one vacant position between the two of them the Tribunal went on to find that each man had a 50% chance of remaining in employment and reduced their compensatory award accordingly.[4]As to that award the Tribunal assessed Mr Clay's compensation in this way. His employment with the Respondent had terminated on 10 July. He was awarded his loss of earnings, less Incapacity Benefits received until 14 November 1999, and a further five months loss thereafter. After the 50% Polkey deduction his net compensation, allowing for loss of statutory rights, was assessed at £2,295.20.[5]In the Appellant's case his loss of earnings was terminated on 20 September 1999, when he opted to begin a part-time university course. Having calculated his lost earnings with the Respondent, less monies earned in alternative employment with a firm called Allenby's during the period between the effective date of termination, 23 April and 20 September 1999, and allowing for the loss of statutory rights, his net award, after the 50% Polkey deduction, was £328.93. The Tribunal's Decision, with Summary Reasons only, was promulgated on 29 October 1999 (the substantive Decision).[6]On 8 November 1999 the Appellant applied for a review of the substantive decision . In evidence he had told the Tribunal that he was shortly due to start employment as a doorman, however he now discovered that the work would be on a self-employed basis and he did not want to work other than on an employed basis; he would also have to go on a licensed doorman course. He therefore would not be taking up that work. He also complained that whilst Mr Clay was to receive six months future loss of earnings he, the Appellant, had received none under the Tribunal's award.[7]By a Decision with Reasons dated 2 December 1999 (the Review Decision) the Chairman, Mr Capp, dismissed the review application on the ground that it had no reasonable prospect of success (then Rule 11(5) of the 1993 Employment Tribunal Rules of Procedure). His reasons for so holding were these:
"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."
[8]Dissatisfied with the response the Appellant appealed against both the substantive and review Decisions by a Notice dated 9 December 1999. To that notice he attached a copy of the substantive Decision with Summary Reasons.[9]By a letter dated 6 January 2000 the Deputy Registrar pointed out that the EAT Rules required Extended Reasons to be lodged with the Notice of Appeal. He applied to the Employment Tribunal for Extended Reasons and eventually on 2 March that request was refused by the Chairman on the grounds that it was made out of time (the Reasons Decision). On 20 March the Appellant entered a second appeal against the Reasons Decision.[10]Both appeals came before a division presided over by Mr Justice Lindsay, President, on 7 July 2000. As appears from the judgment given and Orders made on that day the EAT:(1) dismissed the complaint that the Appellant should have received the same sort of award as Mr Clay as unsustainable;(2) found that the Review Decision was arguably flawed in two ways;(3) similarly, found that the substantive Decision was arguably flawed;(4) allowed the Reasons appeal to proceed due to some confusion over earlier communications between the Appellant and the Employment Tribunal. The Appellant was directed to, and did, lodge an affidavit setting out the history of the application for Extended Reasons.[11]The grounds on which the matter was permitted to proceed were then set out in an amended Notice of Appeal, dated 31 July 2000, those grounds having been prepared with the assistance of Counsel, who appeared on behalf of the Appellant at the preliminary hearing, under the ELAAS pro bono scheme.[12]Those are the only grounds which are before us on this full appeal hearing with both parties present.[13]There is, it seems to us, a fundamental fallacy in the first appeal which had until today been overlooked. The duty to mitigate loss only applies to periods when loss is held to run, flowing from the unfair dismissal. In the present case, on the basis of the Tribunal's Summary Reasons for the substantive Decision, which we think can be treated as Extended Reasons for this purpose, the Tribunal found that the Appellant's loss flowing from the unfair dismissal ended on 20 September 1999 when he embarked on his part-time university course. It follows that whether or not he ought to have taken the doorman's work in October 1999, on a self-employed basis after training and paying for a licence, is nothing to the point. No question of mitigation of loss then arose because the loss had ended, so the Tribunal found, on 20 September. The amended grounds of appeal make no challenge to the finding that that was indeed the proper cut-off date for loss in the Appellant's case.[14]Thus, dealing with the three Tribunal Decisions under appeal:(1) we shall exercise our powers under EAT Rule 39(3) to allow the substantive Decision appeal to proceed without Extended Reasons. That effectively disposes of the Reasons appeal in the Appellant's favour.(2) We shall dismiss the appeal against the substantive Decision because even if the Appellant had led evidence as to the true status of the doorman work at the hearing on 14 October 1999 it could make no difference to the outcome, based on a finding that his loss of earnings attributable to the unfair dismissal ended on 20 September when he took up his university place.(3) We dismiss the appeal against the Review Decision not on the basis of the Reasons given by the Chairman for that Decision but because, by parity of reasoning, the doorman job and its precise circumstances could have no possible effect on the outcome of the substantive Decision. Cf Wileman -v- Minilec Engineering Ltd [1988] IRLR 144.[15]In these circumstances, the appeals are dismissed.