NORWICH UNION LIFE SERVICES v BRIAN MENZIES [2003] UKEAT 0002_03_2506
[1]APPEARANCES For the Appellants Mr J McHugh, Solicitor Of- Messrs McClure Naismith Solicitors 49 Queen Street EDINBURGH EH2 3NH For the Respondents Mr S Cochran, Solicitor Of- Messrs Balfour & Manson Solicitors 54-56 Frederick Street EDINBURGH EH2 1LS LORD JOHNSTON: In this appeal the Employment Tribunal found that the employee respondent had been unfairly dismissed as a consequence of what they found to be a constructive dismissal and made a monetary award. The appeal is limited to one aspect of their compensation award, namely, the figure of £10,000 for future loss.[2]The relevant part of the Tribunal's decision is as follows:- "For the remaining period of 6 months of our quantification period we shall award him £10,000. We do so on the basis of the uncertainties which surround his new post. Plainly for the applicant the new post is something of a new venture in unfamiliar territory. The applicant was vague as to whether he would be employed, or would fall to be regarded as self employed. The company with which he was now associated were "involved in the mortgage market. They do credit care as well. It is a commission basis depending on what level of business I do. They send business my way. It is not known what business I will get". We had no doubt, vague though he was, the applicant was giving as candid a view as he could in regard to his future remuneration prospects. Indeed we formed the impression that the new association which he has now formed was something of a "shot in the dark". As already indicated the applicant did not expect to earn any commission until some 12 weeks after the commencement of his association. He will receive no salary. We draw the inference that while the applicant will begin to earn commission 12 weeks after the commencement of his association, it will take some time for that commission to build up. It is for these reasons that we award him £10,000 over the remaining period of 6 months of our quantification period of 18 months."[3]Mr McHugh, appearing for the appellant, employer submitted that there was no evidence upon which the Tribunal could justify the figure of £10,000. He referred us to a number of authorities, namely:- Alexander Machinery (Dudley) Ltd v E Crabtree [1974] IRLR 56 Fougere v Phoenix Motor Co Ltd [1977] 1All ER 237 Norton Tool Co Ltd vNJ Tewson [1972] IRLR 86 Nohar v Granitestone (Galloway) Ltd [1974] ICR 273 Green v J Waterhouse & Sons [1977] ICR 759[4]Mr Cochran, for the respondent employee, merely submitted that the Tribunal had been in entitled to consider that there was a future loss which they could reasonably estimate on the sum in question.[5]The issue is short but sharp, and, is not, in our opinion, assisted by authority. The question is purely one of consideration of the Tribunal's approach.[6]It is important to bear in mind that upon the Tribunal's findings, since the employee was about to embark on new employment, there was no evidence as to what actual earnings would be given the fact that it was going to be on a commission basis and that again turned on the amount of work that would be available. Any exercise, therefore, in our view, was bound to be speculative to some extent. What is however clear to our mind, is that there was obviously going to be some shortfall, at least initially, as between a commission earning job and one attracting a salary and that means that the Tribunal, in our opinion, were entitled to reflect in their decision an element of future loss.[7]Against that background we are not persuaded that the finding of £10,000 manifests either extravagant or erroneous approach by the Tribunal. It is within the range of figures that they were entitled to select and on that basis we will not interfere.[8]This appeal is refused.