WINCANTON TRANS EUROPEAN LTD (FORMERLY P & O TRANS EUROPEAN LTD) v IAN WHITEFORD [2003] UKEAT 0022_03_2808
[1]APPEARANCES For the Appellants Mr I Sharpe, Advocate Instructed by- Messrs Prettys Solicitors Elm House 25 Elm Street IPSWICH IP1 2AD For the Respondent Ms M Gribbon, Solicitor Of- Messrs Digby Brown Solicitors 77 Renfrew Street GLASGOW G2 3BZ LORD JOHNSTON: This is an appeal at the instance of the employer against a finding of the Employment Tribunal, in favour of the respondent employee with regard to his claim for unfair dismissal, making a substantial monetary award.[2]The only issues challenged before us, were, firstly, the extent to which the Tribunal found that the employee had contributed to his dismissal which was labelled at 50% and, secondly, with regard to the issue of compensation, in respect of loss of pension rights.[3]The matter can be dealt with shortly.[4]In regard to the issue of contribution, this Tribunal has said many times that it will not interfere with an assessment by the Employment Tribunal which is, essentially, one of fact unless it can be shown that the decision was such that no reasonable Tribunal could have achieved it. Cases such as Nairne v Highland and Islands Fire Brigade [1989] SLT 754 and Hollier v Plysu Limited [1983] IRLR 260 make that very clear.[5]In these circumstances, despite certain of the wording the Tribunal uses, it is clear that they were entitled, within our view, to reach an assessment of 50% and we will not interfere with that finding.[6]The issue of pension rights is slightly more complicated, inasmuch, that, both parties produced actuaries' reports assessing figures which had a substantial differential. At the end of the day, the Tribunal opted for that submitted by the respondents, i.e., the lower figure, before applying the contributory deduction.[7]Before us, Ms Gribbon, appearing for the respondents, accepted that she was seeking no more than the actual award that was made. In these circumstances, we consider we do not need to deal with the arguments presented on behalf of the appellants in relation to the failure to mitigate, because it is clear to us that the decision by the Tribunal, which might otherwise have been challenged on the basis that they should have applied a multiplier, is not, in fact, being challenged by Ms Gribbon. Furthermore, it does not appear that any argument with regard to multiplier was advanced before the Tribunal at the lower level.[8]In these circumstances, we are satisfied that the award should stand.[9]We would wish to make two further observations.[10]In the first place, without laying down any general rule, we have very serious doubts that it is a relevant consideration with regard to loss of pension rights, that the failure on the part of the dismissed employee to obtain other pensionable employment should be regarded as a failure to mitigate. There are so many extraneous factors applying to the question of pension schemes as to make this an imponderable. We would not wish to lay down any absolute rule but simply make an observation. Secondly, we must record this Tribunal's serious concern at the length of time this case took. It was originally scheduled for two days. It finally lasted a total of 12 days spread out over a period of more than a year. Thereafter, a further year elapsed before the decision was promulgated. This Tribunal, regretfully, must record its extreme concern at both aspects of this situation and, not least, at the delay in producing the judgment.