B FRANKLE & SONS LIMITED T/A FRANKLE TRIMMINGS v MR P CARPENTER [2002] UKEAT 0534_01_1605

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0534_01_1605Case No Appeal No. EAT/0534/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
B FRANKLE & SONS LIMITED T/A FRANKLE TRIMMINGSAPPELLANTMR P CARPENTERRESPONDENT
Before
Mr Justice Wall Mr D J JenkinsDate 16 May 2002
[1]APPEARANCES For the Appellant MR M JACKSON (Solicitor) Messrs Lake & Co Solicitors 6 Albermarle Way London EC1V 4JB THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of an appeal by B Frankle & Sons Limited trading as Frankle Trimmings against the remedies decision of the Tribunal sitting at Stratford on 26 February 2001 with reasons promulgated on 13 March 2001. The claimant before the Tribunal was Mr P B Carpenter.[2]Mr Carpenter had been employed by the Appellant as a delivery driver between 6 July 1998 and 30 May 2000, which the Tribunal found was the effective date of the termination of his employment. It is for the purposes of this judgment unnecessary to go into the detail of the hearing before the Tribunal in relation to liability but I think it is necessary to say that the incident which began the process ending in Mr Carpenter's dismissal was the changing of a wheel on the firm's van which he was allowed to take home at night. In the process of changing that wheel he injured his back. What then followed, as I say, is not material save that it resulted in the Tribunal at a hearing on 18 December 2000 with reasons given on 16 January 2001 that Mr Carpenter had been unfairly dismissed.[3]Mr Carpenter's statement for the purposes of the remedies hearing was that the dismissal had been a severe blow to him and his family as a result of which he became depressed. There is medical evidence in the terms of notes from his general practitioner indicating that he was suffering from clinical depression and receiving medication. It is however significant that in his statement he said that his back was getting much better while he himself became much worse in his mental state. He concluded his statement to the Tribunal in relation to the remedies hearing with these two paragraphs:
"Some 9 months down the line I do not feel much better. I think I may have improved but my symptoms have not decreased much. I still have problems with sleep, panic attacks, lack of concentration. My doctor has referred me for counselling at Hammersmith Hospital but despite him chasing them, I still have not got a date. My current certificate expires at the end of March. I would like to believe that I will be in employment within the next 6 months but I cannot be certain. I thought winning the Tribunal case would mean me feeling much better instantly but it has not proved like this. I do, however, want to get better and I do want to get back into a job and I must continue to think that I will."
That evidence as to his mental state was supported by his wife.[4]The Tribunal, in the remedies decision, found that Mr Carpenter's gross pay was £180 per week, net pay £140 odd and that his loss began from 1 July 2000. Significantly, in our view, the Tribunal found expressly that Mr Carpenter was profoundly affected by his dismissal, suffering from stress, anxiety and depression, for which he received medication from his doctor whose medical certificates were before the Tribunal. The Tribunal then referred to the amount of incapacity benefit which Mr Carpenter had been receiving and made a basic award based on one year's service. They then calculated his losses by reference to the amount he would have earned, deducting from it, of course, the incapacity benefit that he had received, and, I think most controversially, for the purposes of this hearing, the Tribunal took the view that he should have a period of thirteen weeks from the date of the hearing calculated by way of compensation for future loss. The Tribunal undertook those calculations which I need not recite. The end result was a total award of some £4,343.31.[5]That decision is attacked by Mr Jackson, on behalf of the Appellant, on two grounds. The first is that Mr Carpenter had not made known to the Appellant the fact that he had a back problem which had resulted in the termination of his previous employment with the Post Office in 1992 and that had that been known to the Appellant, the Appellant would have been likely to have dismissed him shortly afterwards in any event because the back problem was inconsistent with the work that he was required to do. We do no not think there is anything in this point. First of all it is clear from the statement which Mr Carpenter made in the proceedings that with intensive physiotherapy he had recovered from the back problem which he had in 1992 and in any event, as I have already indicated from the statement, it was quite clear that his back was getting better whilst his psychiatric condition deteriorated. Therefore it is likely that he would have been back within a week or so working had it simply been the back problem. This first ground in our view therefore is unarguable. The second ground relates to the question of the thirteen weeks. That is attacked on the basis that Mr Carpenter had not put forward before the Tribunal appropriate or proper evidence to demonstrate that he required an additional period or there was an additional period of future loss of the amount or the time indicated and that it was incumbent upon him to do so and therefore perverse of the Tribunal to make an award without that evidence being available. Once again we think that argument is entirely unsustainable. The Tribunal had the evidence of Mr Carpenter and the evidence of his wife. The Tribunal made the specific finding, which I have already indicated, namely that Mr Carpenter was profoundly affected by his dismissal. The Tribunal did not go the whole hog with Mr Carpenter and award him an additional six months, it effectively halved that period. That, we think, was an exercise of discretion which cannot, in any sense, be faulted. It certainly cannot be said to be an error of law.[6]In these circumstances we take the view that there is no arguable point to go forward to a Full Hearing and the appeal must be dismissed at this stage.