T M D FRICTION LIMITED v (1) MR A R BAKER (2) MR C D DENIAL [2001] UKEAT 849_01_1610

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 849_01_1610Case No Appeal No. EAT/849/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
T M D FRICTION LIMITEDAPPELLANT(1) MR A R BAKER (2) MR C D DENIALRESPONDENT
Before
Mr Justice LindsayDate 16 October 2001
[1]APPEARANCES For the Appellant MR ANDREW BURNS (of Counsel) Instructed by: Messrs Eversheds Solicitors Eversheds House 70 Great Bridgewater Street Manchester M1 5ES MR JUSTICE LINDSAY (PRESIDENT) We have before us as a preliminary hearing the appeal of T M D Friction Ltd in the matter Mr A R Baker and Mr C D Denial vTMD Friction Ltd . Today Mr Burns, who did not appear below, appears for the Appellant, T M D Friction.[2]On 21 August of last year, Mr Baker launched an IT1. He had, he said, been employed from November 1998 to 29 July 2000. A little later he added a claim for unlawful deduction from wages and for breach of contract. On 12 September last year the company put in an IT3 and claimed that Mr Baker had properly been made redundant, as at the 7 September 2000. We have not got full papers of Mr Denial's case, but I do not think that matters for immediate purposes.[3]On 15 and 16 February of this year, there was a hearing of two days at Newcastle upon Tyne and the judgment of the Tribunal was sent to the parties on 15 May of this year. It was the Decision of the Tribunal under the chairmanship of Mr N W Garside and it reads as follows:
"The unanimous decision of the Tribunal is that:- (1) The applicant, Mr A R Baker, was unfairly dismissed. The respondents are ordered to pay to him the sum of £13828.00. (2) The applicant, Mr C D Denial, was unfairly dismissed and the respondents are ordered to pay him the sum of £1839.89. (3) The respondents are ordered to pay the applicant's costs, to be assessed if not agreed."
[4]On 25 June the Notice of Appeal was received by the Employment Appeal Tribunal. It relates only to quantum and costs, because liability had been conceded below. The Notice of Appeal affects not only Mr Baker but also Mr Denial, although our papers, as I mentioned, relate chiefly to Mr Baker. Mr Burns has put in a well laid out Skeleton Argument and it will be convenient to deal with the points that he raises one by one, by reference simply to the paragraph numbers and letter numbers on the Skeleton Argument without, in each case, setting out exactly what the argument is. If it becomes necessary to know what the argument is, it will be simply be a question of referring to the Skeleton Argument.[5]So, first of all, one sees page 2, ground a, and, as I say, I will not set out exactly what the ground is; it is well set out in the Skeleton. It relates to the use of the word "eventually". The word "eventually" is, in our view, explained because Mr Baker gave evidence that he thought he had been dismissed as at 29 July 2000, and it would seem that he left the employer's premises for the last time on 30 June 2000. He did not get fresh employment until 12 September 2000, after, it would seem, spending £50 on job search costs and seeking an assessment as an instructor at the British School of Motoring. The word "eventually" may be a little strong in the context, but it represents no arguable error of law.[6]Next heading, page 2, ground b. The Tribunal did not ignore the fact that Mr Baker had progressed to being a supervisor; they expressly mention it. It may well be open to a Tribunal which, after all, includes those with commercial and business experience, to infer that a second promotion or wage increase will be less likely where there has already been one promotion or wage increase. A man might, after all, have quickly come up against his ceiling; we see no arguable error of law there.[7]Next heading, page 2, grounds c and d. Mr Burns asserts that there was an inadequate mitigation, but the Tribunal says:
"We consider that he has taken every step to try and obtain employment at the same level as he had with the respondents"
Only the Applicants gave evidence below; there was no contrary evidence and the Tribunal also says:
"He has been unable to secure a job which is sufficient to pay the equivalent to his pay when he was employed by the respondents."
The word "unable" there suggests that he has tried. Mr Burns says that he may well have tried to get the first job, but did not thereafter try and get a better paid job, something more close to the rate of remuneration that he had enjoyed when he was at TMD Friction. But the Tribunal clearly says:
"We consider that he has taken every step…"
And the evidence came from only one side; it is not as if there was any disputed evidence that needed to be resolved by the Tribunal, and it seems to us that that is a sufficient conclusion. We have certainly no reason to think that it was a finding that was not open to the Employment Tribunal, and we see no arguable error of law there.[8]Next, page 2, ground e. Here, I think it will be necessary to read out the Skeleton Argument's formulation. It is this:
"e. the tribunal's finding that the First Respondent would take as long as 3 years to increase his earnings further was one that no reasonable tribunal could reach on the evidence. It was perverse for the industrial members to draw the conclusion that the First Respondent was not qualified to do a job equivalent to a product unit manager when the evidence was that he had been doing that job for the Appellant."
That misunderstands the Tribunal's conclusion. They did not say that he did not have the qualifications to do the job, but he did not have the qualifications to get the job - which is a very different thing. What the Tribunal said was this:
"The opinion of the industrial members of the Tribunal is that Mr Baker does not have the qualifications which would enable him to get an equivalent job to that which he had with the respondents. He probably will not get to the same level of earnings for some time. Taking into account his qualifications and his age, the Tribunal considers that it will take three years for him to achieve the salary which he received from the respondents."
[9]Now there is always some danger in reliance upon the Tribunal's own experience rather than on evidence but when one is looking at an assessment of local job opportunities and prospects and the time likely to be taken, one is looking at a subject which is inescapably somewhat hypothetical and speculative, at any rate where there is no expert evidence on the subject, which seems to have been the case here. Where there is no expert evidence and where the Tribunal is therefore driven to rely upon its own practical experience, it seems to us that a Tribunal is entitled to use the sort of reasoning which the Tribunal used here. It was a conclusion which, as it seems to us, involved no error of law, and we see no arguable error of law in this area.[10]Next, looking at the Notice of Appeal, the heading would be page 3, paragraphs 4 and 5, running on to page 4. There is no hint anywhere that the Tribunal was affected in its computation of loss by being told that the employer had made two offers which the Applicant had thought insufficient and that there had almost been a settlement behind the scenes. Nor is it said that the Tribunal knew what the rejected offers had been. Nor does the Tribunal say that the Applicants had been right to reject the offers or that the employer had been wrong not to have offered more. The discussion in paragraphs 27 - 29 had, as it seems to us, no effect at all on the substantive award, and we see no arguable error of law in that regard. Mr Burns' Skeleton says:
"However the tribunal were wrong in making the assumption that the offers of settlement made in respect of each of the Respondents were "totally unacceptable" and/or "insufficient"."
But the Tribunal did not say that, and it could not have said that, because it did not even know what the offers were. What it was doing was reciting Mr Smith's case on behalf of the Applicants. We see no arguable error of law in that regard.[11]Next heading, page 4, paragraphs 6 and 7. The Tribunal, as it seems to us, was not criticising the Respondent below for not calling evidence on liability; the Tribunal thoroughly recognise that the Respondent below had conceded liability; the issue was why that concession came so late. The Tribunal, in effect, as it seems to us, was saying this:
"It is not as if the employer was going to call evidence on liability and so surely it could have considered earlier that liability should be conceded"
There was, in other words, no evidence that the employer was intending to call which, if believed, as it might have been, would have militated against an early concession on liability, or perhaps, against any concession at all on liability. The Tribunal in its paragraph 29 was trying to fathom why the concession of liability was so late; they were not saying "no evidence was to be called" and that therefore costs should be payable, but that liability could and should have been considered earlier, and hence the concession could have been considered earlier, given that there was to be no evidence to be called on the employer's side. That, as it seems to us, is a perfectly fair attitude to take and we see no arguable error of law there.[12]As a comment, if the offers made to Mr Baker and Mr Denial by the employer were higher than the Employment Tribunal eventually held to be paid, the employer would have, of course, been able to ask for a review. That would have been a matter upon which a review would have been open as it would have been a fact which could not have been understood at the Tribunal because, until the result was out, no one would have known the result.[13]Lastly, we come to page 5, paragraphs 8 - 11, headed "Quantum of Costs". The Appellant contends, by Mr Burns, that the Decision itself at the front of the papers is out of line with the Extended Reasons. The Decision says, as we have quoted it, that the company is to pay the Applicant's costs. The Extended Reasons say only the costs from 9 February 2001. Mr Burns is plainly right in making the point that the two are out of step. One might have thought that the problem could be resolved by inviting the Employment Tribunal to review the Decision or to use the equivalent of the slip rule to eradicate what might have been an error, but the disparity between the Decision and the reasoning has been allowed to stand. Of itself, it would not justify, in our view, our attention unless and until the Tribunal had refused to clarify what they truly meant. But Mr Burns submits that the selection of 9 February is an arbitrary date, and a wrong date, as being a date from which costs ought to start running in favour of the Applicant below, even assuming (against his other arguments) that there should be any award at all for costs. It is true that 9 February appears to be entirely unexplained. It is what Mr Smith, for the Applicants below, had submitted, and Mr Burns tells us today that it seems as if it was a day on which bundles were delivered.[14]In his Skeleton, at paragraphs 10 and 11, Mr Burns says:
"10. The hearing was only on the question of quantum as liability had been conceded, and so it is difficult to see any reason why the costs of the hearing should be awarded as opposed to any costs of unnecessarily preparing the liability issues in preparation for the hearing. 11. The only award of costs that was properly open to the tribunal in respect of an unreasonably late concession of liability would be for the Appellant to pay the costs on the issue of liability thrown away by the late concession."
In the absence of any explanation at all of why 9 February was selected, we see there to be an arguable error of law in this part of Mr Burns' argument, and so the only matter which we permit to go forward is the question of quantum of costs.[15]Now we do invite the parties to think rather carefully about whether the game would be really worth the candle, in allowing further costs to be spent simply on the rather limited question of whether time should start running on 9 February or by reference to some other event or date. We hope the parties will see that it would be very easy to incur disproportionate costs in arguing the question which we have allowed to go forward. However, simply because we do see an arguable error of law in this area, we allow the issue of quantum of costs to go forward; the rest of the case is dismissed here and now. Skeletons on the issue of quantum of costs are to be lodged with the EAT and exchanged between the parties not less than fourteen days before the hearing, and the matter is to be Category C, one hour