MR J WHELAN v MRS S D MOORE [2003] UKEAT 1459_01_2911

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1459_01_2911Case No Appeal No. EAT/1459/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR J WHELANAPPELLANTMRS S D MOORERESPONDENT
Before
His Honour Judge J Altman Mr I Ezekiel Mr P R JacquesDate 29 November 2003
[1]APPEARANCES For the Appellant THE APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE ALTMAN This is an appeal from the decision of the Employment Tribunal sitting at Birmingham on 30 July 2001. Neither party has appeared before us today but we have representations in writing. This is a case in which the Appellant's Respondent Mr Whelan took over the cleaning contract at DC Cookes in Coventry from a firm called Bow Draper. One of their employees was the Applicant, Mrs Moore. The employment transferred on 1 July 2000 on the finding of the Tribunal. Within a matter of days, that is by the end of that month, the Applicant had been dismissed.[2]The Employment Tribunal found that that dismissal was unfair. They also found that there had been a transfer of the contract of employment by reason of the transfer of the cleaning contract to which we have referred. The Employment Tribunal then proceeded to calculate the loss of wages. There are two matters that we have noted. First of all, in relation to the issue of unfair dismissal we note that at paragraph 22 the Employment Tribunal said:
"The tribunal has gone on to consider whether the respondent has established a fair reason for terminating the applicant's contract of employment. … The Tribunal is not satisfied that the respondent has adduced any evidence to support a contention that the applicant's work was below an acceptable standard. … The tribunal has concluded that the respondent has failed to establish a fair reason or indeed any reason for terminating the applicant's contract of employment."
Of course, the issue of establishing the reason for dismissal requires the Tribunal to identify the actual reason at the time and that may or may not be a fair reason and furthermore it may or may not be a reason for which there is any evidence. It seems to us on the face of it that the Tribunal erred in law in failing to establish the reason for dismissal in accordance with those principles but appear instead to have considered whether the reason was fair in order to establish either the existence of a reason or what it was.[3]The Employment Tribunal then in paragraph 23 go on to deal with the actual procedure and they come to the conclusion that the dismissal was unfair. Accordingly, it seems to us that the Tribunal did err in law in their approach to the application of the facts as found to the statutory tests. However, having looked at the findings of fact of the Tribunal it appears that they came to the conclusion that the evidence did not satisfy them that the way in which the Applicant did her work was unsatisfactory.[4]Further, it is quite apparent on the findings of fact that there was no discussion between the parties before dismissal. In those circumstances, we are driven to conclude that the correct analysis of the facts if adopted by the Tribunal would inevitably have led to the same conclusion. They would have found that the reason for dismissal related to conduct or capability, they would have been driven to find that there was no evidence of that, and that there were no procedural steps taken, so that the employer was unreasonable in treating that as a reason for dismissal when the matter is viewed in the light of equity and the substantial merits of the case.[5]However, when the issue of compensation comes to be considered the position does seem to be rather different. In assessing loss the Tribunal gave an award over a period of about thirteen months. However, within five months of the Respondent's taking over the cleaning contract, he himself had had to stop doing the work and accordingly had the Applicant continued in his employment she would have been made redundant. We have been referred to the relevant passage in Harvey under the heading 'Whether the unfairness made any difference?' and which the case of James W Cook & Co (Wivenhoe) v Tipper [1990] ICR 716 is referred to as finding that:
"If the company shut down and all the employees were made redundant a few weeks after the Applicant was unfairly dismissed, his compensatory award ought not to run beyond that date."
[6]In those circumstances it seems to us that the Tribunal clearly erred in assessing the loss of wages for the period of a year together with an element for future loss. We understand that the Respondent, on his account threatened by the Applicant's solicitors with proceedings if he did not do so has in fact paid the Applicant £1000 that she was then entitled to receive but we assume that the prescribed element has not been paid.[7]We therefore have come to the conclusion that it is unnecessary to remit this matter to another Tribunal. There are sufficient facts before us which appear to be clear and essential and in contestable on the basis of which we can substitute the appropriate award. The Applicant lost her employment on 29 July 2000. By January 2001 the Respondent had ceased his operation. That gives a period of five months. The Employment Tribunal calculated loss of wages to be £300 per month which gives a figure of £1500. They deducted from that a figure of £1044.44 for earnings during the relevant period and deducting that gives a prescribed element of £455.56. It also gives a compensatory award of that amount.[8]Accordingly, we allow the appeal to the extent of setting aside the award of compensation and substituting in its place an award of a basic award of £660, a compensatory award of £455.56 making a total award of £1115.56 and we declare that the prescribed element is £455.56.