MR A DHEDHI v UNITED LINCOLNSHIRE HOSPITALS NHS TRUST (FORMERLY PILGRIM HEALTH NHS TRUST) [2003] UKEAT 1303_01_2503

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1303_01_2503Case No Appeal No. EAT/1303/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A DHEDHIAPPELLANTUNITED LINCOLNSHIRE HOSPITALS NHS TRUST (FORMERLY PILGRIM HEALTH NHS TRUST)RESPONDENT
Before
His Honour Judge Ansell Ms K Bilgan Mrs A GallicoDate 25 March 2003
[1]APPEARANCES For the Appellant MR DALE MARTIN (of Counsel) Instructed By: Messrs Harper Macleod Solicitors The Ca'd'oro 45 Gordon Street Glasgow G1 3PE For the Respondent MR THOMAS LINDEN (of Counsel) Instructed By: Messrs Beachcroft Wansbroughs Solicitors 7 Park Square East Leeds LS1 2LW HIS HONOUR JUDGE ANSELL : This is an appeal against a decision of the Employment Tribunal held at Lincoln on 22 August 2000, where at a remedies and review hearing, following an earlier finding of unfair dismissal, the Tribunal allowed the Respondents to review a decision that the compensatory award should be reduced by 33 1/3% and, in the light of the review, varied the figure down to 20% and also made a total award of £17,141.07, including a compensatory award of £16,151.07. This hearing follows leave given at a preliminary hearing held on 22 January 2002.[2]The facts found by the Tribunal were as follows. The Respondents administer a very large general hospital covering the Boston area and have a General Surgery Department headed by Mr Hassan with a number of Consultant Surgeons, three relevant ones being Mr Khan, Mr Andrews and Mr Massey. In 1996 there was a perceived need for another senior Surgeon to be recruited to the department and the preferred option was to recruit a Specialist Registrar; that, however, required funding approval and it was not until the summer of 1999 that it was clear that that approval would not be forthcoming. In the meantime, it was decided to recruit a Locum Associate Specialist in General Surgery, which is effectively a Consultant level post without the title, and the Appellant was recruited through an agency bank for an initial short-term appointment commencing on 14 May 1996. The Appellant was a highly qualified and experienced General Surgeon, having held senior appointments, particularly in Pakistan where he was also a Professor of Surgery in a medical school, coming to this country to seek employment here for reasons of insecurity there. Prior to the appointment with the Respondents he had held a number of appointments as a locum at senior level, including Locum Consultant. At the time of the appointment he was 51 years of age, having been born in December 1944.[3]Thereafter, the Appellant was reappointed on a succession of local contracts as Locum Associate Specialist, totalling in all some three and a half years. The Appellant's hope was to be appointed to a permanent Associate Specialist post but this was not possible whilst the Trust was still pursuing a possibility of obtaining funding for a Specialist Registrar.[4]Once the Trust knew that they were not going to get the funding for the Specialist Registrar post, they proceeded to consider, through the General Surgeon Consultants and Clinical Director, the criteria upon which they might appoint a permanent Associate Specialist. There were two possible courses that they could take. The first course was personal regrading without advertising the post, ie promotion from within which was a suitable course where a candidate was already employed by the Trust. The requirement was for the Appellant to be considered by a Trust Appointment Committee, but there was a precondition to this method of appointment that any applicant should have "full local support" and be signed by the Chief Executive. This effectively meant that all the Consultants in the department would have to support such a regrading. Whilst the Tribunal found that the Appellant had not made a formal application for regrading, they held that the practice was for the initiative to come from one or more of the Consultants to a potential applicant for a post at this level.[5]There had been professional and personal difficulties between the Appellant and Mr Khan, one of the key consultants in the department and, as a result of discussions between the Consultants, a decision was taken that the Appellant would not have full local support and, therefore, the route of personal regrading without advertising was not taken, although no explanation was ever given to the Appellant.[6]Thereafter, the post was advertised externally and the Appellant, together with other candidates were considered and an external applicant was appointed. The consensus amongst the interviewing panel was that the successful applicant and one of the other external applicants were considerably ahead of the Appellant in terms of their interviews and future potential as Senior Surgeon. However, the Tribunal also found that, if the external process had not been embarked upon, the Appellant would have been a suitable appointee by way of personal regrading, save for the reported absence of the full local support. The Appellant's final fixed-term contract came to an end on 31 January 2000 when he left the hospital. The Tribunal at the reasons hearing held that it was a dismissal for some other substantial reason, namely the non-renewal of a fixed-term contract but found that it was outside the range of reasonable responses for the Respondents to dismiss the Appellant without first considering the question of regrading as an Associate Specialist in accordance with their procedure. The decision not to do so on the basis of private and, indeed, secret discussion between the Consultants and the failure to address those concerns with the Appellant was part of the unfairness in that decision leading to his dismissal. However, the Tribunal went on to apply a Polkey discount to the compensation on the basis that, even if proper procedures and discussions had taken place, Mr Khan, one of the three key Consultants, may well have still objected to the Appellant's appointment and thus, they held that there was only a two-thirds percent chance that he would have been appointed under the internal regrading process, ie that he had lost the two-thirds chance that he would have been appointed, if the proper process had been carried out prior to his dismissal as a Locum Associate Specialist. At the remedies and review hearing the Tribunal allowed the Appellant firstly to open up the Polkey reduction under the review process for reasons that we shall deal with in detail later. They altered the percentage down to a 20% reduction for reasons as set out in their Decision, namely that as a result of information given to them by the Respondents at the review hearing, the internal Appointment Committee would have consisted of five people who made their decision by a majority vote. That committee included two internal Consultants, one of whom might or might not have been Mr Khan, and thus it was possible for any one dissenting member to potentially persuade his or her colleagues not to appoint the Appellant. For this reason the deduction was reduced.[7]There was evidence before the Tribunal, and they so found, that the Appellant had been unemployed for 25 weeks and thereafter obtained further locum positions, initially from July 2000 at Monklands Hospital which was extended and then followed (save for a gap of three weeks) by another similar post at Pinderfields. Both of those positions were at a higher salary level than his previous post, although in his schedule of loss the Appellant had raised the issue of other losses, such as extra housing costs and travelling expenses. In all the calculations put before the Tribunal by the Appellant's representative, the calculations for past and future losses were based on a comparison with what the Appellant had been earning in his locum position with the Respondents, rather than what he might have earned should he have secured the permanent position. With regard to future losses the Tribunal were satisfied that, as at the time of the assessment, the Appellant had embarked on a pattern of locum employments which was likely to continue in the future at a level of remuneration expected to be more than, and certainly not less than, his previous post and refer to the Appellant having got himself back on to the "locum circuit". They referred to the ready availability of such posts which appeared from the bundle and evidence put before them. They thus concluded that the chain of causation of loss was broken on his appointment to the first locum position at Monklands and that his losses sustained in consequence of his dismissal by the Respondents attributable to their actions should cease at that point. They added that it was not just and equitable to attribute any further losses that may arise after the end of the Pinderfields contract to the Trust.[8]This appeal raises three interesting points.(1) The Polkey deduction. The Appellant's claim that there should not have been any reduction in this case because (a) the serious unfairness of the Respondents' actions and (b) that the findings of fact were perverse. By way of cross-appeal the Respondents contend that there should not have been any review of the Polkey decision and they seek to uphold the original deduction of one third.(2) The Appellant contends that, notwithstanding the fact that the his past and future losses were based on a comparison with his locum earnings and that this arose because of the figures that had been placed before the Tribunal in the Appellant's schedules, the Tribunal should have considered any losses in comparison with his earnings from the employment that he would have been given had he not been unfairly dismissed ie the permanent position.(3) The Appellant further contends that the Tribunal was wrong in law to hold that the chain of causation of loss can be broken by a series of fixed-term continuous appointments. (1) Review and Polkey deduction[9]At the original hearing the Appellant was represented by Mr Bourne, an Industrial Relations Officer of the BMA, the Respondents by Mr Brain, Solicitor. We are informed that the issue of the Polkey reduction was, as is often the case, raised by the Tribunal towards the end of the hearing and submissions were sought upon it. There was no suggestion in the original decision that either representative had any difficulty in dealing with this issue and it is clear from the detailed reasons that the Tribunal had fully explored all the facts of the case, including matters which obviously would have had relevance to the Polkey decision and, in particular, they heard evidence from Mr Khan.[10]The application for review was made under Rule 11(1)(e) of the Employment Tribunals (Constitution of Rules of Procedure) Regulations 1993 , which has since been superseded by the 2001 Rules, which give the Tribunal power to review a decision on the grounds that the interests of justice require such a review. The Tribunal, in paragraph 8 of their Decision, correctly reminded themselves that an application could be made where there had been a procedural mishap, but also reminded themselves that this ground of review only applied in the more exceptional case where something has gone radically wrong with procedure involving a denial of natural justice or something of that[11]In Trimble v Supertravel Ltd [1982] IRLR 451, this court held that the industrial tribunal should have allowed a review where an applicant's solicitor had not had the opportunity to address the Tribunal on their decision announced at the end of the hearing before giving written reasons that there was a failure to mitigate. In Harber v North London Polytechnic [1990] IRLR 198, a representative's decision to withdraw a complaint of unfair dismissal was consequent upon the Tribunal Chairman putting the wrong question about continuous employment to the representative. At paragraph 26 Balcombe LJ put the position thus:
"In other words, if there is a mistake made by the litigant's representative, it is not conclusive. The court – in this case the chairman of the Tribunal being asked to exercise a power to order a review – had a discretion. That discretion should be exercised on certain well-established principles, one of which must be: was there any mistake made at the original hearing? It cannot be just to hold Mr Harber to the mistake of his representative if that mistake was induced in part by the failure of the Polytechnic solicitors to send all the relevant documents to the Tribunal so that the Tribunal was acting, at least in part, under a misapprehension, in part by a misunderstanding or misstatement of the law by the chairman of the Tribunal itself, and in part by an apparent refusal to look at the relevant cases which were put before the Tribunal in the correspondence and a refusal of the request for an opportunity to give oral submissions. In my judgment the learned chairman, in refusing to grant a review here did not properly exercise her discretion. The Employment Tribunal did not give proper consideration to the test that she should have applied. I have no doubt that there was here a mistake and that the interests of justice do require a review."
[12]Mr Linden for the Respondents has referred us to Lindsay v Ironsides Ray [1994] ICR 384. In that case the Tribunal had allowed a review following the failure of the Applicant's representatives to make submissions on the issue of extending time under Section 68(6) of the Race Relations Act 1976 , which had been raised before the Tribunal by the employers. The Tribunal had observed that the representative was not a lawyer and that it was "apparent she was out of her depth". The employer's appeal was allowed by this Court and at page 394, Mummery J said this:
"The facts in the present case cannot be properly viewed as a 'procedural mishap' or 'procedural shortcoming', or 'procedural occurrence' of a kind which constitutes a denial to a party of a fair and proper opportunity to present a case. The facts, as they appear to us, are that the applicant was represented at the first hearing by Mrs Grenham. The solicitor representing the employers clearly raised before the industrial tribunal in his opening, as well as in his closing remarks, that there was an issue of extension of time under section 68(6). The tribunal was aware of this and made a decision on the point. The failure of Mrs Grenham to make any submissions on the point and the failure of the tribunal to identify to Mrs Grenham the way in which it was considering its exercise of discretion did not, in our view, amount to denial of a fair opportunity to present an argument on a point of substance. The fact that the tribunal thought it necessary, in its review decision, to make criticisms of Mrs Grenham's ability indicated that the reason for granting a review was that, in the view of the industrial tribunal, the applicant's case was not properly argued as a result of Mrs Grenham's shortcomings. Failings of a party's representatives, professional or otherwise, will not generally constitute a ground for review. That is a dangerous path to follow. It involves the risk of encouraging a disappointed applicant to seek to reargue his case by blaming his representative for the failure of his claim. That may involve the tribunal in inappropriate investigations into the competence of the representative who is not present at or represented at the review. If there is a justified complaint against the representative, that be may the subject of other proceedings and procedure. It is thus our view that the industrial tribunal erred in law in granting a review under rule 10(1)(e) of the Rules of Procedure 1985."
[13]We take the view that the facts of this case are in no way different from the situation as set out in the Lindsay decision. There has not been a mistake, or a procedural mishap, or procedural shortcoming which constitutes a denial to a party of a fair and proper opportunity to present a case. Submissions on Polkey deductions are very much the "bread and butter" of many Tribunal hearings and if there was any shortcoming on the part of Mr Bourne, we cannot see that this entitled the Tribunal to review the decision for that reason.[14]If we are wrong on this point, we will consider briefly the two further submissions on the Polkey deduction. Mr Martin for the Appellant has referred us to King v Eaton [1998] IRLR 686, where there had been an unfair redundancy of a number of employees, the unfairness being the fact that there was "no consultation worthy of the name with any of the employees" and, secondly, that the Tribunal had found it impossible to decide whether the selection criteria had been fairly applied in the absence of evidence from those who had made the relevant markings when assessing the employees for redundancy. At a remedies hearing the Tribunal had refused to allow the employers to lead additional evidence to show that the employees would still have been dismissed, even if a fair procedure had been followed. The headnote recites as follows:
"The tribunal acknowledged that where a dismissal is held unfair because of a serious flaw in procedure alone, compensation might be reduced if following a fair procedure would have made no difference to the result, but in a more serious case 'riddled with unfairness throughout', there will usually be no escaping a full award of compensation."
The Court of Session supported the Tribunal's position and at paragraph 22, Lord Prosser stated the position as follows:
"Nonetheless, it seems to us that in this case the absence of consultation at the stage when a method was being adopted, and criteria for assessment selected, has the effect of putting that method and those criteria in doubt. To say that this 'goes to the heart of the matter' appears to us to be entirely justified. To ask whether the same method and criteria would have been adopted, if there had been consultation beforehand, or to try to show what method and criteria would have been adopted, in the light of consultation, is in our opinion to embark upon a sea of speculation, where the opinions of witnesses could have no reliable factual starting point. In such a situation, a tribunal is in our opinion well justified in refusing to allow evidence as to whether the unfair act or omission 'made a difference'."
[15]We do not agree that this case falls within the more serious category set out in King v Eaton and we do not see that the procedural flaws in this case take it out of the normal run of cases where a Polkey deduction can be considered. Further, and in contrast to the King decision, the Polkey decision was indeed raised at the original hearing when, as we have already stated, the Tribunal had the opportunity to assess the facts, both in relation to the unfair dismissal and the Polkey deduction.[16]Finally on this point, even if the Tribunal had been justified in holding a review, we see no reason why the Tribunal should have altered the percentage in the manner in which they did. Within the original decision it was clear that the Tribunal's view was that, within the internal regrading system even if conducted fairly, Mr Khan's influence would have been at the stage of "full local support" where he was one of three Consultants discussing the Appellant's future. That was a clear finding and conclusion to be found in paragraphs 13, 16, 20, 28 and 31 of their Decision. In the review decision, for reasons that are not clear to us, they ignore their earlier findings and seek to rely on the circumstances relating to the appointment committee, where Mr Khan may or may not have been a member. We can find no factual or logical basis for the Tribunal changing their percentage, even if they had power to review the decision, since it remained the case that the appointment would not have been made if it did not have the full support of the local Consultants which is where, as we have already stated, Mr Khan would have the opportunity to exert influence. We see no reason to depart from the Tribunal's findings within its original decision as to the appropriate deduction. (2) Appropriate Comparator[17]The second issue raised in this appeal relates to the appropriate method of calculation of losses, ie should the calculation be based on a difference between actual earnings after dismissal and what he would have been paid in the original locum position. or what he would have been paid had he been awarded the permanent position? Both sides agree before us that it is the latter which is the appropriate method of calculation: see Redbank Manufacturing Co Ltd v Meadows [1992] IRLR 209 . As we have previously set out, all the Appellant's schedules and calculations appear to have been based on his net weekly wage in the locum position. Indeed, it is accepted that no information was placed before the Tribunal as to what he would have earned in the permanent position. The Appellant now contends that, notwithstanding that this error (if it be an error) was made by the Appellant's own representatives (and he was legally represented at the time of the remedies hearing), the Tribunal had a duty to raise this matter themselves. Neither we nor the Tribunal had any information to show whether the net weekly figure for a permanent position would be greater than the locum position.[18]Counsel for the Appellant referred us to R W Tidman v Aveling Marshall Ltd [1977] IRLR 218 and Langston v Cranfield University [1998] IRLR 172 which clearly established that it is the duty of the industrial tribunal itself to consider the five categories of compensatory award, namely immediate loss of wages, manner of dismissal, future loss of wages, loss of protection in respect of unfair dismissal and loss of pension rights. He also reminds us that, although generally a party will not be permitted to raise new points on appeal which could have been ventilated before, this must be seen in the context of cases where a principle is so well established that an industrial tribunal may be expected to consider it as a matter of course. Further, at paragraph 22 of the Langston case,

Judge Peter Clark stated as follows:

"Further, in Red Bank Manufacturing Ltd v Meadows [1992] IRLR 209 (Tucker J presiding) the Employment Appeal Tribunal held that an industrial tribunal was obliged, following an unfair redundancy dismissal finding, to consider the application of the twofold Polkey [1987] IRLR 503 principle when assessing compensation, namely if a proper procedure had been followed would it have resulted in an offer of alternative employment? If so, at what salary level? The case was remitted to the industrial tribunal for further consideration."
The case itself concerned an unrepresented applicant claiming unfair dismissal on the grounds of redundancy. The Tribunal had omitted to consider questions of consultation and alternative employment when looking at the overall question of reasonableness.[19]Mr Linden for the Respondents seeks to distinguish the present case from the two authorities. Firstly, he says that the Tribunal's own duty should be restricted to the five categories of compensatory award, to which we have already made reference, and that there was no need for the court in Langston to seek to add a sixth principle, namely the Red Bank approach. Secondly, he maintains that this was a case where the Tribunal had not omitted to deal with the matter, since they had been presented with the figures and the appropriate method of calculation by the Appellant's representative at the hearing, thereby making a concession about the appropriate method of calculation. Further, this Court would be wrong to exercise its discretion to allow such a conceded point to be reopened. This should only be allowed in exceptional circumstances and for compelling reasons and certainly not if the result were to open up fresh issues of fact which, because the point was not an issue, were not sufficiently investigated before the Employment Tribunal - as in this case, where no evidence had been put before the Tribunal as to the salary level of a permanent employee: see Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 .[20]We agree with the Respondent's submissions. We see no reason why the Tribunal, in the light of the concession made by the Appellant's representative, were obliged to open up this issue and for the reasons advanced by the Respondents we would not allow them to do so. (3) Fixed-term contracts and causation[21]The third and most difficult point raised by the Appellants relates to the Tribunal's decision to limit the Appellant's losses up to the time when he obtained the locum appointment at Monklands in July 2000, some 25 weeks after leaving Pilgrim. Section 123(1) of the Employment Rights Act 1996 provides that:
"123 Compensatory award (1) ... the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
In Simrad Ltd v Scott [1997] IRLR 147, the Employment Appeal Tribunal, sitting in Edinburgh (Lord Johnston presiding), stated as follows in relation to assessing loss:
"The process is a three-stage one, requiring, initially, factual quantification of losses claimed; secondly, but equally importantly, the extent to which any or all of those losses are attributable to the dismissal or action taken by the employer, which is usually the same thing, the word 'attributable' implying that there has to be a direct and natural link between the losses claimed and the conduct of the employer in dismissing, on the basis that the dismissal is the causa causans of the particular loss and not that it simply arises by reason of a causa sine qua non, ie but for the dismissal the loss would not have arisen. If that is the only connection, the loss is too remote. The third part of the assessment in terms of the reference to the phrase 'just and equitable' requires a tribunal to look at the conclusions they draw from the first two questions and determine whether, in all the circumstances, it remains reasonable to make the relevant award. It must again be emphasised, however, that what is to be considered under the third test already has to have passed the second. Finally, it has to be observed that while the facts relating to a question of mitigation will frequently bear upon the question of causative link, mitigation is essentially an equitable plea to be judged in the context of reasonableness at common law and thus on not too fine a balance. Accordingly, the issue of mitigation will feature in the application of the third test rather than the second, and subsection (4) of the section merely directs the tribunal as to the proper approach to mitigation if that is what is being considered."
In Lytlarch Ltd v Reid [1991] ICR 216 the Employment Appeal Tribunal in Scotland (Lord Mayfield presiding) held that whilst "The normal method of assessing compensation was to take the whole period between the dismissal and the industrial tribunal hearing, setting off any earnings in new employment during that period against the assessed compensation; but that there might be exceptions to that rule, for example, if there was considerable delay between the termination of employment and the assessment of compensation; that further the requirement of section 74(1) of the Act of 1978 that the amount of the compensatory award should be just and equitable in all the circumstances was an overriding consideration, and that in the circumstances the industrial tribunal's decision to award compensation only up to the start of the employee's new job would be upheld." At the end of the judgment the court set out the principle as follows:
"We feel that particular regard has to be paid to the words 'just and equitable' and to the degree of discretion allowed to an industrial tribunal in assessing the compensatory award. In our view, therefore, although there might be said to be a normal method of assessment, nevertheless the overriding consideration is the statutory injunction to make an award which is 'just and equitable'. In our view, the industrial tribunal considered the relevant factors and came to the conclusion, in this case, that the compensatory award for loss of earnings should be awarded down to the date on which the employee obtained his new employment. One of the factors which has weighed with this appeal tribunal in considering the circumstances of the present case is that the difference between any assessment following the Ging principle and the requirement to make a just and equitable award is minimal."
[22]Mr Martin for the Appellant referred us to two cases in 1998 relating to assessment of loss: Whelan v Richardson [1998] IRLR 144 and Dench v Flynn [1998] IRLR 653 . In Whelan the court held that:
"As soon as an applicant obtains permanent alternative employment paying the same or more than pre-dismissal earnings, the loss attributable to the action taken by the employer ceases. It cannot be revived if that employment is lost either through the applicant's own action or that of the new employer. However, an applicant who takes alternative employment on the basis that it will be for a limited duration is not precluded from claiming a loss down to the assessment date, or the date of taking up permanent higher paid employment, whichever is the sooner, giving credit for earnings received from the temporary employment."

Judge Peter Clark giving the judgment of this Court, said as follows:

"We begin with some general, possible trite, observations. Each case must depend upon its own facts. The parties will select whichever authority best suits their cause on the facts of the particular case. Industrial tribunals are charged with doing justice between the parties. Compensation is to be assessed in such a way as to compensate the employee, not penalise the employer, in relation to the compensatory, as opposed to an additional or special, award. Neither party should gain a 'windfall'. Compensation must be that which is just and equitable. Parliament has thereby granted a discretion to industrial tribunals which ought not to be placed in a straightjacket by too rigid statements of principle handed down by this tribunal in appeal decisions. However, that discretion must be exercised in accordance with clear principles, to some extent imported into this field from the Common Law by the words of the statute."
[23]In Dench , Ms Dench had been employed by the Respondent firm as an assistant solicitor and was given three months' notice on the grounds of redundancy. During the notice period the only offer of new employment she received was one which was subject to a three-month probationary period which she commenced despite considerable misgivings. Matters did not work out and the employment was terminated after a few months. The Court of Appeal held that a loss consequent upon unfair dismissal does not necessarily cease when an applicant gets employment of a permanent nature at an equivalent or higher salary than an employee previously enjoyed. To regard such an event as always putting an end to the attribution of loss to the unfair dismissal could lead to an award which was not just and equitable. What the Tribunal had to determine was whether the loss in question was caused by the unfair dismissal or by some other cause. At paragraphs 20 and 21 of the judgment, Beldam LJ said this:
"20 Although causation is primarily a question of fact, the principle to be applied in deciding whether the connection between a cause, such as unfair dismissal, and its consequences is sufficient to found a legal claim to loss or damage is a question of law. The question for the industrial tribunal was whether the unfair dismissal could be regarded as a continuing cause of loss when she was subsequently dismissed by her new employer with no right to compensation after a month or two in her new employment. To treat the consequences of unfair dismissal as ceasing automatically when other employment supervenes is to treat as the effective cause that which is simply closest in time. 21 Causes, in my view, are not simply beads on a string or links in a chain, but, as was said many years ago, they are influences or forces which may combine to bring about a result. A tribunal of fact has to consider the appropriate effect of the wrongful or unfair dismissal and the effect of the termination of any employment which is subsequently obtained. That is a function which an industrial tribunal is called upon frequently to perform and, provided it does not regard itself as rigidly bound in every case to take the view that a subsequent employment will terminate the period of loss, it seems to me that it will be able, fairly and equitably, to attribute to the unfair dismissal the loss which has been sustained."
[24]It is clear from all these authorities that the Tribunals have been given considerable discretion to deal with the issue of compensation provided that discretion is exercised in accordance with clear principles of assessing loss and on a basis which is just and equitable. Generally, therefore, these are issues of fact and discretion which are best left to Tribunals and with which this Court should be loathe to interfere.[25]It seems to us that for the Appellant to succeed in this case he would have to argue successfully that, as a matter of law, the succession of locum appointments which were likely to continue could not break the chain of causation. We can find no such principle from the authorities cited to us, although we accept that in many cases it would be only a permanent appointment that could break that chain. In this case the Tribunal had reminded themselves that since coming to this country the Appellant had always worked in locum positions, including three and a half years spent with the Respondents. At the time of the remedies hearing he had been in locum placements for around a year, save for a three-week gap between the two appointments and the Tribunal had made a finding that there was a ready availability of such posts with the likelihood that those future posts would be at a level of remuneration expected to be more than, and certainly not less than, his previous remuneration. They added this:
"We also take the view that in this case, the date of assessment, delayed in the circumstances we have described, is indeed arbitrary and not the appropriate date at which loss should be assessed .... . It is, in our view, not just and equitable to attribute any future losses that may arise after the end of the Pinderfields contract to the Trust."
With regard to the ancillary losses, such as travel costs, keeping a second home, child care and mobile phone costs, which are included in the Appellant's schedule of losses, the Tribunal found that they had all arisen after the Appellant had taken up the Monklands' post and they therefore excluded them for consideration on the basis that the chain of causation was broken at that time.[26]We are quite satisfied that on the peculiar facts of this case, and with the generous ambit given to Tribunals to deal with assessment of the compensatory award, there was no error of principle on the part of the Tribunal. We would accordingly dismiss the appeal and allow the cross appeal, thereby reinstating the Polkey deduction of 33 1/3%, giving a total compensatory award of £13,459.89.

order

see Fforde v Black (EAT/68/80). The Tribunal gave their reasons for a review as follows: "However, these [the submission made at the original hearing] were necessarily an immediate response to the question raised by the Tribunal and it is no disrespect to Mr Bourne to say that this was an issue beyond his experience to make adequate submissions in those circumstances. We have, therefore, concluded it is in the interests of justice that we should review the percentage deduction and we now do so."

Cited in 1 later judgment