MR D PARRY v BRITSEC INTERNATIONAL LTD [2003] UKEAT 0086_03_0904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0086_03_0904Case No Appeal No. EAT/0086/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D PARRYAPPELLANTBRITSEC INTERNATIONAL LTDRESPONDENT
Before
His Honour Judge Birtles Mr A D TuffinDate 9 April 2003
[1]APPEARANCES For the Appellant NO ATTENDANCE JUDGE BIRTLES This is a Preliminary Hearing of an appeal from the decision of an Employment Tribunal sitting in Liverpool on 2 May 2002 and 28 June 2002. The Chairman was Mr S Christie and the members were Mr G Sanders and Mr F Lindsay. The unanimous decision of the Tribunal was to order the Respondent to pay the Applicant the sum of £2490.64p by way of compensation and the Tribunal gave extended reasons for reaching that decision.[2]As I have indicated today is the Preliminary Hearing and we have an EAT form from he Appellant's solicitors Messrs Alan Roberts & Co indicating that neither Mr Parry nor any legal representative intends to be present at the hearing and Mr Parry will rely on written submissions.[3]Those written submissions are contained in a skeleton argument dated 12 April 2003 and served pursuant to the order of this Tribunal on 6 March 2002. Mr Parry applied to the Employment Tribunal claiming unfair dismissal. As I say this appeal to this Tribunal is solely on the issue of the compensation paid to Mr Parry, his application for unfair dismissal having succeeded.[4]The Notice of Appeal is short and I will read it in full:
" The Grounds for the Appeal Is that the Employment Tribunal erred in Law in respect of their consideration of the compensation claim at the remedy hearing on the 28 th June 2002 for the following reasons: 1. They failed to take into account the Appellants disability on the job market due to the fact that he is severely disabled due to his epilepsy. 2. The Tribunal made a mistake in finding that the Applicant had not mitigated his loss when he gave evidence that he had written for job applications but he had not kept copies of them and he was penalised because he couldn't produce the copy letters for jobs he had applied for."
Those are the two grounds of appeal and of course it is trite law that an appeal to this Tribunal lies only on an error of law.[5]Before saying anything about those two grounds of appeal we would refer to the well-known principles set out in a number of decisions both of this Tribunal and the Court of Appeal that when Tribunals have considered all the relevant heads of compensation this Tribunal is generally very reluctant to interfere with its findings. This applies to all facets of the award. We do not propose to go each argument in the skeleton argument. What we propose to do is to deal with each of the two grounds of appeal in this judgment.[6]The first ground of appeal then is that the Employment Tribunal failed to take into account the Appellant's disability on the job market due to the fact that he is severely disabled due to his epilepsy. It is quite clear from the decision of the Employment Tribunal that this was not the case. The condition of epilepsy was referred to by the Tribunal in the following paragraphs of its decision: 7, 10(ii), 10(vi), 10(xi) and 10(xii).[7]It is perfectly clear from a reading of the Tribunal's decision that it did take account of Mr Parry's epileptic condition in reaching its decision as to the number of weeks which it awarded him for his compensatory award. There is therefore no merit in this ground of appeal. The second ground of appeal is that the Tribunal made a mistake in finding that the Applicant had not mitigated his loss when he gave evidence that he had written for job descriptions but he had not copies of them and he was penalised because he could not produce the copy letters for jobs he had applied to.[8]This is amplified in the skeleton argument and relates to the alleged failure of the Appellant to mitigate his loss. Paragraph 3 of the skeleton argument alleges that the Tribunal found that Mr Parry had not made any attempt to mitigate his loss which was contrary to the evidence in that he gave evidence that he had applied for four jobs, one with B & Q, one with Asda, one with a Golf Club and one with Flintshire County Council. It is perfectly clear from the Tribunal's decision (see paragraph 10(iv)) that the Tribunal specifically referred to these job applications. There is no error of law there.[9]Second, paragraph 4 of the skeleton argument refers to the fact that the Tribunal found there was no evidence that the Appellant had applied for these jobs because there was no written evidence to file with the Tribunal. We think there is error here in this argument. Paragraph 10(iv) refers to those jobs and it is quite clear the Tribunal accepted that Mr Parry applied for those jobs. However, in respect of other jobs that Mr Parry asserted he had applied to the Tribunal found that there was no written evidence to support Mr Parry's assertion in evidence that he had applied for other jobs (see paragraph 10(ix)).[10]The Tribunal cannot be criticised in our view for finding that Mr Parry's evidence about mitigation in respect of applying for other jobs was not as cogent as it could have been given as that no written evidence was presented to it. Even if that written evidence had been presented in support of Mr Parry's attempts to mitigate his loss looking at the decision overall it is quite clear that the Tribunal had ample evidence from which it could find that Mr Parry had failed to mitigate his loss by seeking to apply in a reasonable way for other work and we find no error of law on this second ground of appeal.[11]For those reasons we dismiss the appeal at this stage and do not permit the case to go forward to a full hearing.