AQUA-GAS (VALVES & FITTINGS) LTD v MR R BRUNNING [2002] UKEAT 920_01_2009

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 920_01_2009Case No Appeal No. EAT/920/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
AQUA-GAS (VALVES & FITTINGS) LTDAPPELLANTMR R BRUNNINGRESPONDENT
Before
Ms Recorder SladeDate 20 September 2002
[1]APPEARANCES For the Appellants MR MARTYN WEST (Advocate) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PU For the Respondent MR MARTIN KINGERLEY (of Counsel) Instructed by: Messrs Bates Wells & Braithwaite Solicitors 29 Lower Brook St Ipswich Suffolk IP4 1AQ MS RECORDER SLADE QC This is an appeal from the Decision of an Employment Tribunal sitting in Bedford which ordered Aqua-Gas, the Appellants, to pay compensation to Mr Brunning in the sum of £50,000. Mr Brunning had been an Area Sales Manager for the Appellants, earning more than £24,000 per annum, who was dismissed for redundancy on 4 July 2000.[2]Following an earlier hearing on liability, the Employment Tribunal had found that the Appellants had unfairly dismissed Mr Brunning on redundancy. Mr Brunning was aged fifty five at the date of his dismissal. In its Decision as to remedy, which is under appeal, the Employment Tribunal based its calculation of compensation on loss from 16 August 2000 (taking into account pay in lieu of notice) to retirement date at age sixty five.[3]Having made a 20% Polkey deduction for the chance that had a proper procedure and proper selection on redundancy been applied, Mr Brunning may have been made redundant, the Employment Tribunal arrived at a figure of approximately £165,000, which was capped at the statutory limit of £50,000.[4]Mr West, who appears for Aqua-Gas before us, but did not represent the company before the Employment Tribunal, attacks the compensation award made by the Employment Tribunal on three bases. First, he says that the period for which the Employment Tribunal calculated loss which was over eight years was perversely long in the light of the fact that Mr Brunning had obtained a job with Anglia Advertiser, albeit that he left the job after four and a half days. Second he says that the Employment Tribunal erred in law in failing to make a discount for accelerated payment. Third, he says that it was perverse for the Employment Tribunal to find that Mr Brunning had not failed to mitigate his loss by remaining in the job with Anglia.[5]Turning first to ground one, the perversely long period. Mr West contends that on the basis of the evidence, that Mr Brunning had obtained a job with Anglia Advertiser, it was perverse for the Tribunal to base its calculation of future loss on that period up to normal retiring age. Mr Kingerley, for Mr Brunning, says that it was open to the Employment Tribunal to reach the conclusion that it did on the evidence before it and that this Employment Appeal Tribunal should not interfere with that conclusion.

(i) :

"In this case we have noted the excellent long-standing employment record of Mr Brunning prior to his redundancy. He appears to be a man in excellent health who plays tennis regularly. We can see nothing about Mr Brunning which would lead us to think that he would not have continued to work until he was 65, in other words the normal retirement age. Therefore we see nothing which should detract us from saying that the period of assessment of compensation should start as being until his normal retirement age given that there is ample evidence that he is unfortunately unable to get employment, principally because of his age."
[6]The evidence before the Tribunal was that Mr Brunning had made numerous job applications by the time of the first hearing before the Tribunal on liability, and that since that date, he had applied for approximately seventy five further positions. In paragraph 3(1) of its Decision the Tribunal recorded further:
"………He has tried jobs across the range and has only received a handful of interviews in comparison with the number of CVs sent out. He makes repeated visits to the Job Centre and asks them for training help which he has not been given because he is considered to be too qualified for their purposes. It follows that the Tribunal can find nothing about Mr Brunning's behaviour since the loss of his employment to show anything other than maximum effort to mitigate losses."
It is fair to say that that passage relates to evidence given on mitigation, but it is also relevant evidence which the Employment Tribunal was entitled to rely upon, as it did in assessing the length of period over which it should compute compensation.[7]In our judgment, the fact that Mr Brunning obtained what the Tribunal accepted was an unsuitable job, does not render the Decision of the Tribunal, that he would not find work before retiring age, perverse. The Tribunal had evidence before it of innumerable job applications and other efforts that Mr Brunning had taken to find work which had not resulted in success. We do not suggest that in every case where there is a dismissal of someone aged fifty five or over, compensation should be calculated on loss to retiring age - far from it. However, we conclude that the Decision of this Employment Tribunal on the evidence before it was not perverse.[8]Turning now to the second ground of appeal, that is that the Tribunal erred in making no discount for accelerated payment. Mr West accepts that there is nothing to suggest that this point was raised before the Employment Tribunal. Mr Kingerley, who was before the Employment Tribunal, asserts that it was not raised. The point is not raised in the Skeleton that was prepared for the purposes of the preliminary hearing before the Employment Appeal Tribunal, which Skeleton is referred to and relied upon also for the purposes of this full appeal.[9]However, Mr West says that even if the point was not raised, it should have been raised by the Employment Tribunal of its own motion. Mr Kingerley says that not only was the point not raised in the Employment Tribunal, it was not raised in the Notice of Appeal or the amended Notice of Appeal. It appears that the point of discount for accelerated payment may have had its origin in the preliminary hearing (see judgment). However, the point was not made in the amended Notice of Appeal, so the position is that the point was not raised before the Employment Tribunal; it was not raised in the original Notice of Appeal, nor was it raised in the amended Notice of Appeal, and it cannot be taken now.[10]Turning to the third point taken on this appeal, Mr West says that it was perverse of the Employment Tribunal to find that Mr Brunning had not failed to mitigate his loss by remaining in his job with Anglia. The job with Anglia Advertiser was at a considerably lower salary than he had been receiving and there was evidence before the Tribunal, which is recorded in its Decision, as to why Mr Brunning left his job.[11]At one point, Mr West appeared to be suggesting that if Mr Brunning had stayed in his job, that job would have provided a springboard for better jobs, however he accepts that there was no evidence relating to this and no basis for saying the this would have been the industrial experience of the lay members. This point is purely speculation.[12]The Employment Tribunal, as we have said, received evidence as to why Mr Brunning left Anglia Advertiser. It also had before it the evidence of Mr Shreeve, from Anglia Advertiser. Having heard the evidence from both parties on the reasonableness of Mr Brunning leaving his post after such a short time, the Tribunal say at the end of paragraph 4 of its Decision:
"……In conclusion we therefore find that the Applicant did not act unreasonably in leaving the position from the standpoint of mitigation of losses."
[13]The Employment Tribunal went on to say, in paragraph 5 that:
"… on the calculations we have come to, had we in the alternative decided that he should have stayed there, then this is not a case which equates with that which was referred to by the Respondents' representative, namely that relating to the person who changed their career to nursing, Simra -v- Scott [1997] IRLR 147." and at the end of the paragraph: "
The employer should still in usual circumstances and from a just and equitable standpoint be picking up the differential in lost earnings for such time as the Tribunal might consider reasonable" The Tribunal's approach is entirely consistent with the judgment of Sir John Donaldson in Bracey -v- Iles [1973] IRLR 210 at page 211, paragraph 10. It is for a respondent to show that an applicant has failed to mitigate his loss - see Bessenden Properties Ltd -v- Corness [1974] IRLR 338 .[14]The Employment Tribunal did not come to a perverse conclusion in not accepting that Mr Brunning had failed to mitigate his loss by not remaining with Anglia Advertiser. Accordingly, we dismiss this appeal.[15]A perfectly proper application for costs has been made in this appeal, but having regard to the high hurdle erected by the language of Rule 34(1) of the rules of the Employment Appeal Tribunal we are not satisfied that this situation falls within the Rule and therefore we dismiss the application for costs.