MR P R ROMAIN v SINCLAIR COLLIS LTD [2001] UKEAT 628_01_0810

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 628_01_0810Case No Appeal No. EAT/628/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P R ROMAINAPPELLANTSINCLAIR COLLIS LTDRESPONDENT
Before
Mr Justice LindsayDate 8 October 2001
[1]APPEARANCES MR PAUL STEWART (of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) We have before us, as a preliminary hearing, the appeal of Mr Peter Romain in the matter Romain -v- Sinclair Collis Ltd . Mr Paul Stewart has appeared for Mr Romain under the ELAAS system and we are grateful to him, as also should be Mr Romain.[2]On 13 July of last year, Mr Romain lodged an IT1 for unauthorised deduction from wages and for unfair dismissal. He had been employed from February 1993 to 14 July 2000. On 17 August of last year the company, Sinclair Collis, put in its IT3. There were two days of hearing at Reading in November of last year, dealing with liability only, and then the Tribunal met in private also to consider the matter and on 8 January of this year the Decision was sent to the parties and it was:
"1) The Applicant was unfairly constructively dismissed; 2) The Applicant is entitled to payment for shortages he was not responsible for; 3) All other claims are dismissed."
That was the Decision of the Tribunal at Reading, under the Chairmanship of Mr C J Cleugh. It dealt only with liability and there is no appeal as to liability.[3]On 26 March there was a remedies hearing and on 10 April of this year the remedies decision was sent to the parties and it said:
"The respondent is ordered to pay to the applicant:- i) Basic award of £2,300. ii) Payment in respect of unlawful deduction from wages £1,135. iii) Compensatory Award £6,549."
And the Tribunal broke down the figures to some extent in their paragraph 10:
"Basic Award £2,300 Unfair deduction from wages £1,135 Two weeks' pay in August £ 662 Compensatory Award to date of hearing £4,114 13 weeks' future loss £1,573 Loss of statutory rights £ 200 Total £9,984"
[4]On 22 April Mr Romain sought a review by the Employment Tribunal of the remedies decision. Prudently, as it turned out, on 22 May he also put in a Notice of Appeal. On 28 May the Employment Tribunal refused the review. Mr Romain's Notice of Appeal makes seven separate points which we will touch on one by one, and the first - using the descriptions in the Notice of Appeal - concerns £613.85 . Mr Romain had conceded that he had been paid this sum, but he says that he was paid it by way of a settlement of a claim that he had made against Sinclair Collis for what are called "shortages" and "overs". He says that for the Tribunal to deduct it from his wages as if it had been paid towards his wages would be an error of law. We have no reason to know precisely what the evidence was on this subject - but if Mr Romain's factual assertions are right, then there may well be here error of law; we see the matter to be arguable, one fit to go to a full hearing.[5]Secondly, the £868.67 . Again, the Notice of Appeal sets out in detail Mr Romain's calculations which, if factually correct, suggest that there may an error of law on the Tribunal's part, namely that they made a deduction of £868.67, which, if Mr Romain is factually correct, was either unsupported by evidence or represents a misunderstanding of the evidence by the Tribunal. So that, again, goes to a full hearing.[6]Thirdly, the compensatory award . The Employment Tribunal calculated his loss at the date of the hearing at £121 a week for thirty four weeks. £121 was the difference between the net that they took to be his old wage (£331 per week) and his new one, post-dismissal, of £210. The £331 was derived from a gross wage of £2,531, which divided by 52, leads to £394 per week, which was reduced to a net £331 per week. But Mr Romain says that that is incorrect; he says the £2,531 was his gross wages after deductions for shortages. What should be appropriate, he says, is his wage before deduction for shortages.[7]However the Tribunal, at the liabilities hearing, had held that his contract was such that stock shortages were to be deducted from salary (see the liabilities decision paragraphs 5 and 6). Under the Employment Rights Act 1996 , Section 123 the Employment Tribunal is charged with computing such amount as the Tribunal considers just and equitable, in all the circumstances, as the loss suffered in consequence of the dismissal, so far as sustained by reason of the activity of the employer. So such a formula plainly entitles the Employment Tribunal to look at what the employee would have received and if what he would have received could be subject to deduction, then a proper deductions ought to be taken into account.[8]However Mr Romain's case is twofold here: he says that the Employment Tribunal looked at gross pay for 1999/2000 after deductions as £20,531 but that before deductions the figure was truly £21,377.41. There was thus an annual difference of £846 by way of deduction. But, he says, that £846 at least includes, and perhaps even represents, deductions which were not properly made, and in one case a large part, he says, was recognised by Sinclair Collis as not properly being deductible because it was repaid in the following year. If, as Mr Romain by Mr Stewart, argues, some part of the deductions were improperly made, then it does seem to us that there is arguably an error of law.[9]Moreover, in a further argument, Mr Paul Stewart argues that in any event, the system that was being used to compute loss was wrong because it had reference to the new system of wages which Sinclair Collis had introduced which was itself a breach of contract, and led to a conclusion that Mr Romain had been wrongly dismissed. We see, therefore, force in the third point and this too goes to a full hearing.[10]Fourthly, unemployment. Was he unemployed for six weeks or for two weeks? Again, we do not know what the evidence was but if his factual assertion was correct we see force in the submission that he makes, and we allow the matter to go forward.[11]Fifthly, pension rights . The Employment Tribunal said:
"The applicant also claims compensation in respect of his loss of pension but he attended the Tribunal with no figures, details or information, which would enable the Tribunal to calculate an award in respect of pension loss. The Tribunal therefore makes no such award ….."
Whilst the final burden is on an applicant to prove his case, the booklet sent to the parties at the Employment Tribunal would seem to contemplate that the respondent employer is expected to bring along figures to the Employment Tribunal where the employee-applicant is a member of a pension scheme run by that employer. The burden the applicant has to satisfy is thus a burden which presupposes that the employer has produced what he should produce. Against that, Mr Romain says, now looking at e) in his Notice of Appeal:
"….At the hearing, the Applicant stated that he had no figures to support his claim because it was the Respondent's responsibility to provide this information and that he had reminded the Respondent of this by fax during the preceding week. However, notwithstanding that only the Respondent would know the precise details of the pension fund and the value of the contributions, counsel for the Respondent submitted that it was the Applicant's responsibility to provide the information. This submission was accepted by the tribunal."
We take Mr Romain's point to be arguable, as suggesting an error of law on the Tribunal's part, and it goes to a full hearing.[12]Sixthly, training expenses. As we have understood the point, Mr Romain mitigated his loss by getting a job as a coach driver but in order to get it he had to train for a PCV licence. To get a PCV licence he had to pay expenses in relation to that training. There will, doubtless, be authorities on this point outside employment law, but, in principle it seems to us to be arguable that if a respondent such as Sinclair Collis, by way of a reduction of the loss for which it is responsible, is entitled to take advantage of a reasonable mitigation of loss by an applicant then the respondent should also bear the reasonable burden of the applicant putting himself in the position in which to be able to make that reasonable mitigation. It is likely that there is authority on this in other areas, and the point can go to a full hearing.[13]Lastly, a point is raised under Section 127(A)(2 ). That section provides that compensation may become payable where the employer has prevented the complainant from using the internal appeal machinery to appeal against dismissal. There is here, it seems to us, no suggestion that Mr Romain at any stage wanted to appeal by way of internal appeal against his dismissal, which was of the constructive variety, and so no error of law, arguable or otherwise, as it seems to us, arises under 127(A)(2) and alone of the grounds in the Notice of Appeal, we dismiss that one here and now.[14]So, all grounds except ground g) go forward to a full hearing; g) is dismissed as not giving rise to an arguable point of law. The Notice of Appeal must be amended to strike out ground g).[15]As it seems to us, the sums at issue will not be great, certainly not to a company of the resources of Sinclair Collis. We do suggest that the parties concentrate hard on the arguments that we have described as arguable, and consider whether the game truly is worth the candle. Proportionality has to be borne in mind, the relevant proportions being between the sums at stake and the costs of the appeal. It would be appropriate that the parties should concentrate on seeing whether terms can be reached and it may be appropriate for either side to make offers without prejudice save as to costs, but that is very much a matter for the parties to consider.[16]If terms are not agreed, then it may become necessary to seek the Chairman's Notes of Evidence. If either party does need those, then in the first place, they are to apply in writing to the President for such notes. Skeleton Arguments not less than fourteen days before the date fixed for the full hearing are to be exchanged between the parties and sent to the Employment Appeal Tribunal, and the matter is Category C.