MR P COWEN v RENTOKIL INITIAL FACILITY SERVICES (UK) LTD T/A INITIAL TRANSPORT SERVICES [2008] UKEAT 0473_07_0603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0473_07_0603Case No Appeal No. UKEAT/0473/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P COWENAPPELLANTRENTOKIL INITIAL FACILITY SERVICES (UK) LTD T/A INITIAL TRANSPORT SERVICESRESPONDENT
Before
Mr Justice EliasDate 6 March 2008
[1]APPEARANCES For the Appellant Ms FALADE Instructed by: Free Representation Unit 6th Floor 289-293 High Holborn LONDON WC1 7HZ For the Respondent Ms F KURJI (of Counsel) Instructed by: Rentokil Initial Facilities Services (UK) Ltd Legal Services Castlegate House Castlegate Way DUDLEY DY1 4RR SUMMARY UNFAIR DISMISSAL Reinstatement/re-engagement Compensation The claimant was found to have been unfairly dismissed. He sought re-engagement. The Employment Tribunal refused an order of re-engagement and assessed compensation on the assumption that once the claimant had obtained another job that set the limit to the loss flowing from the dismissal. In fact he was dismissed at the end of the probationary period. In refusing to order re-engagement the Tribunal took account of the fact that an offer had been made in without prejudice negotiations. The claimant contended that this should have been ignored, and that in any event any compensation should have included the losses flowing from the second dismissal. The EAT agreed that save for the possibility that the without prejudice protection had been waived, the fact that the offer had been made should not have been disclosed. The matter was remitted to a fresh tribunal to consider that question. The EAT upheld the appeal on compensation and held that in the circumstances of this case, the Tribunal could not properly limit compensation to the date of obtaining the new employment. The losses incurred after the loss of that job were also in principle recoverable. THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT) The background to the case is that the Claimant (as he was below and as we shall continue to call him) commenced employment with the Respondent company as a night contract manager in 2001, and he was dismissed for redundancy with effect from 6 October 2006. He received a statutory redundancy payment and five weeks' pay in lieu of notice.[2]The Tribunal found that the dismissal was unfair. There were fundamental failings in the way in which the redundancy was handled: there had been inadequate consultation; the selection had been unfair; and there had been no attempt to find alternative employment. Indeed the dismissal was held to breach the basic statutory procedures laid down by the Employment Act 2002 .[3]The Tribunal then considered the question of remedies. The employee sought re-engagement. The Tribunal found that he had been offered a new contract by the Respondent entailing a different job as contracts operations manager at his old salary, plus 2½ per cent. This offer had been made at a meeting at Waterloo Station on 8 May 2007. He declined that offer and by the time of the Tribunal hearing, the post on offer had been filled. In the circumstances the Tribunal held that it was inappropriate to make an order for re-engagement, commenting that the offer "mitigated his loss in relation to any right of re-engagement."[4]The Tribunal then considered compensation. The Claimant had obtained a new job on 23 October 2006 at a higher salary than his former job. That job was initially on a probationary basis. The Claimant, in fact, failed to be kept on once the probationary period was over and he was dismissed from that second job with effect from 16 January 2007, almost five months before the Tribunal hearing. The Tribunal found that he had mitigated his financial loss from 23 October 2006 and could not recover any compensation for the period following his dismissal in January. They stated that that later dismissal was "not a relevant factor. He mitigated his financial loss from 23 October."[5]They therefore awarded compensation on the basis of loss from the date of dismissal until 23 October. That was less than three weeks, and since he was paid five weeks' money in lieu of notice, it meant that there was no actual loss of salary suffered at all. The Tribunal found that all he had lost was the value of his company car and loss of statutory rights. They increased this by 30 per cent to take account of the failure to comply with the statutory procedures, leaving the sum of £520.[6]They properly did not make any basic award because the Claimant had been compensated by the receipt of a statutory redundancy payment. The relevant legislation .[7]Section 113 of the Employment Rights Act 1996 identifies the two orders of reinstatement and re-engagement which a tribunal may make. The former is made in accordance with section 114 and the latter in accordance with section 115. Broadly, the former is reinstatement in the same job and the latter is re-engagement in a different job. The Tribunal in this case was concerned with the re-engagement.[8]Section 116 is headed 'Choice of order and its terms'. That section, so far as is material, is as follows:
"(1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement…. (2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. (3) In so doing the tribunal shall take into account- (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re-engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms."
[9]Subsection 5 provides in terms that the fact that the employer has engaged a permanent replacement is not to be taken into account in determining whether it is practicable to comply with an order, unless the conditions stipulated in subsection 6 are met. That subsections says:
"Subsection (5) does not apply where the employer shows – (a) that it was not practicable for him to arrange for the dismissed employee's work to be done without engaging a permanent replacement, or (b) that – (i) he engaged the replacement after the lapse of a reasonable period, without having heard from the dismissed employee that he wished to be reinstated or re-engaged, and (ii) when the employer engaged the replacement it was no longer reasonable for him to arrange for the dismissed employee's work to be done except by a permanent replacement."
The grounds of appeal .[10]There are four grounds of appeal. First, it is contended that the Tribunal were wrong to have any regard at all to the fact that an offer of re-engagement had been made. This should have been ignored because, says the Claimant, the offer was made in 'without prejudice' negotiations.[11]Second, it is submitted that even if the Tribunal could properly take that offer into consideration, it erred in law in taking the view that the offer inevitably barred any order for re-engagement being made. It is not one of the three factors specifically referred to in section 116(3) of the 1996 Act and the Tribunal ought not to have treated it as relevant, and certainly not as decisive, on the question of re-engagement. Moreover, the reference to mitigation was inapt; the duty to mitigate is not connected with the question of re-engagement.[12]Third, it is submitted that the Tribunal erred in treating the financial loss as mitigated from 23 October. That was unjust because the employee was only able to hold down the new job for a three month probationary period. It was at least necessary for the Tribunal to have regard to the circumstances under which that job was lost. In this case it was not just and equitable to treat what in fact turned out to be temporary employment as setting the limit to the assessment of loss.[13]Finally, the Claimant submits there was evidence that he would have been promoted to a better paid job had the dismissal not occurred. Accordingly, he contended that the compensation for post-dismissal loss should have been assessed on that basis. As to this ground, we simply note that if in fact the Tribunal was justified in reaching the conclusion that any recoverable loss ceased on 23 October, this ground would have no practical significance even if correct, since any loss between dismissal and the 23 October, even at the higher rate, would be covered by the five weeks' pay in lieu. Should the Tribunal have heard this evidence?[14]The first submission rests on the premise, which was not dealt with specifically in the Tribunal decision itself, that the offer made on 8 May was made in the course of 'without prejudice' negotiations. At the 'sift' stage, His Honour Judge Birtles requested the Tribunal to say whether it did admit 'without prejudice' correspondence and if so, what its reasons were for so doing.[15]The Tribunal record in its answer that the issue of whether the offer had been made 'without prejudice' did arise. The Respondent contended that the offer was not stated to be 'without prejudice' and that in any event they could waive prejudice.[16]The Tribunal do not appear to have determined whether the offer was indeed made in 'without prejudice' negotiations as the Claimant alleged, but their conclusion was this:
"The reasons for admitting the documents were that the respondent waived privilege in relation to the offer of reinstatement and the information was necessary for the fair disposal of the case."
[17]It is common ground between the parties that there were four separate documents before the Tribunal. The first was an email from Mr Simmons, who offered the job to Mr Cowen at the meeting on 8 May, to Mr Munro, a more senior manager in the Respondent company, attaching a summary of the meeting of 8 May.[18]The second is another email from Mr Simmonds to Mr Munro dated 14 May, giving additional information about the discussions on 8 May.[19]There are then two faxes each headed 'without prejudice' and each dated 10 May. In the first Mr Munro sent to the Claimant's legal representative a copy of the job description of the post which had been offered to the Claimant. In the second he sent a copy of another job description which the Claimant had asked to be provided (but which did not relate to the job which he had been offered).[20]Ms Kurji, counsel for the Respondent, submitted that the original meeting was not without prejudice. There were no lawyers present and nobody stated that it should be.[21]We reject that argument. In our judgment, it is quite plain that the meeting of 8 May must be seen as part of the 'without prejudice' negotiations. It was made after the claim for unfair dismissal had been lodged. It is true that the note of the meeting recounts Mr Simmons as emphasising that the Tribunal claim was "a totally separate topic and not for consideration at this meeting", but the fact that the information was subsequently sent by Mr Munro to the Claimant's legal representative demonstrates that it plainly was seen to be part of the attempt to negotiate a solution to the case.[22]It is trite law that the fact that negotiations are not specifically stated to be 'without prejudice' does not mean that they are open. If they are made as part of an attempt to settle litigation, whether actual or anticipated, then they are 'without prejudice' negotiations and the detail of those negotiations cannot in the normal way be drawn to the attention of the court. For a recent decision confirming this well established principle see Brunel University v Vaseghi [2007] IRLR 592 , para. 20 per

Lady Justice Smith who approved the following passage in the skeleton argument of Mr Stafford QC :

"Nor is it necessary for documents or discussions to be headed "without prejudice" in order to engage the principle. If there is a dialogue with a view to the compromise of a dispute, then the privilege arises irrespective of the presence or absence of a heading."
We are satisfied that this was the situation here.[23]However, Ms Kurji has more strings to her bow. She submits that even if the privilege attached to the negotiations and the documents which were part of them, there are numerous grounds on which this evidence could properly be admitted by the Tribunal. First, she contends that the Employment Tribunal was not concerned with the terms of any offer, but only the fact of it. She relies upon the case of Independent Research Services v Catterall [1993] ICR 1, where Mr

Justice Knox, giving the judgment of the EAT, emphasised the well-established rule that:

"the existence of 'without prejudice' in any negotiations is not cloaked by the privilege and it would be entirely proper in our view for the Industrial Tribunal to be aware of the existence as opposed to the terms of 'without prejudice' correspondence …."
Similarly here: the Tribunal was only concerned with the fact of the offer, not its content.[24]That principle is not applicable here for two reasons. First, the Respondent is not simply seeking to rely upon the fact that there were negotiations; they seek to refer to the content of those negotiations. They wish to refer to the fact that during those negotiations a specific offer was made. Second, it is even wholly erroneous to suggest that it is not the detail of the offer that matters, but merely the fact of it. Plainly if the offer had been of an inferior job at a lower salary and had been reasonably refused, it could not conceivably be a bar to an order of re-engagement being made. Accordingly, this is not a basis on which the offer could be admitted in evidence.[25]The second ground on which it is said that the information was admissible before the Tribunal is this. It is submitted that the privilege applies only where liability is in issue and not where the question of remedies is under consideration. Reliance is placed upon the following passage in the judgment of Oliver LJ in Cutts v Head [1984] Ch 290 at 386: "Parties should be encouraged so far as possible to settle their disputes without resorting to litigation and should not be discouraged by the knowledge that anything that is said in the course of that negotiation (and that includes, of course, as much a failure to reply to an offer, as an actual reply) may be used to their prejudice in the course of proceedings. They should … be encouraged to fully and frankly put their cards on the table. The public policy justification, in truth, essentially rests with the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability." (italics added.) In particular, the italicised words are prayed in aid by the Respondent.[26]In our judgment this is misconceived. The Cutts case was concerned with liability and so it is understandable why the policy was addressed in that way. In any event, the justification for the rule, at least in the standard case where the same parties are before the court as were involved in the negotiations, is not merely public policy but also on an implied contract that what is said between the parties will not be subsequently relied on in court. Where there is a dispute about remedies, precisely the same justifications apply.[27]In a case where the amount of damages is in issue, for example, it is not permitted to adduce in evidence what sums may have been offered by the defendant or considered acceptable to the plaintiff in the course of settlement negotiations (although a party may reserve the right to disclose such evidence with respect to costs.) Ms Kurji submits that the rules in employment tribunals relating to orders of reinstatement or re-engagement are different, but we see no reason why they should be.[28]Third, the Respondent contended that since the offer had emanated from them, they were entitled to waive the privilege. This is one of the grounds which found favour with the Tribunal. It is, with respect, wholly misconceived. It is true that in most cases where legal privilege exists it can be waived by the party entitled to the benefit of it.[29]But that is not the case with "without prejudice" privilege. As Ms Falade, representing the Claimant, pointed out, the point was made over a hundred years ago by Lord Esher MR in Walker v Wilsher (1889) 23 QBD 335 at 336-7. More recently, another passage in the Brunel University case unambiguously makes the point:
"It is not enough for one party to seek to open up the privileged communication. Waiver must be consensual. If one party seeks to adduce evidence of a privileged discussion the other party may agree to this course of conduct or may object."
[30]The fourth ground relied upon is linked to this doctrine of consensual waiver. It is submitted that the Claimant, through his representative, had indeed waived the privilege in the negotiations by making available to the Respondent, prior to the hearing, the documents which constituted the 'without prejudice' faxes of 10 May. At that stage he had indicated that these documents would be relied upon and that this partial waiver constituted a waiver of all the without prejudice material. It is alleged that the Claimant subsequently changed his mind about that and objected to the matter being raised by the Respondent. However, the Respondent submits that by then it was too late and that the waiver had already occurred. They were entitled to agree to the waiver.[31]If the privilege had been waived, that would in principle be a proper basis on which the material could have been placed before the Tribunal. It was not, however, the basis on which the evidence was admitted, although the argument was apparently addressed below. The Tribunal seems to have thought that waiver by the Respondent alone was sufficient and perhaps this is why this argument was not dealt with in the decision.[32]There is a factual dispute as to precisely what occurred in the course of pre trial discussions and in view of that, we are not in a position to assess whether there has been a waiver by the Claimant or not. That is a matter to be objectively determined by considering the relevant evidence. We note, however, that in principle it may be possible for a party to revoke a waiver provided that it is done in time: see the observations of Lady Justice Smith in the Brunel University case at para. 40. In our judgment, therefore, bilateral waiver might have been a basis on which the details of the offer could properly be considered by the Tribunal, but it would need further findings of fact before any determination of that question could be made.[33]The fifth ground on which it is submitted that the material ought to be permitted is that there is a well-established principle that the protection of the 'without prejudice' privilege is lost if a party uses a privileged occasion to perpetrate some "unambiguous impropriety": see the decision of the Court of Appeal in Savings & Investment Bank Ltd (In Liquidation) v Fincken [2004] 1 WLR 667 . It is submitted by the Respondent that this exception applies here.[34]The Claimant has sought re-engagement in circumstances where he has already refused such an offer from the employer. It is submitted that it would be a real injustice if that information were to be withheld from the Tribunal. That, as we have seen, was one of the grounds which persuaded the Tribunal to admit this evidence.[35]However, as the Fincken case demonstrates, this principle is very exceptional. In Fincken Rix LJ analysed the authorities in considerable detail (paras 38-63). The judge referred to four decisions of the Court of Appeal, namely Forster v Friedland (unreported) 10 November 1992; Fazil-Alizadeh v Nikbin (unreported) 25 February 1993; Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 , and Berry Trade Ltd v Moussavi (No 2) [2003] EWCA Civ 715 , in all of which the court had considered the scope of the exception and in each of which the court had held that it should not in the circumstances displace the general rule.[36]A very clear statement of the truly exceptional nature of the principle was enunciated by Simon Brown LJ in the Fazil-Alizadeh case, when he said this:
"I add only this. There are in my judgment powerful policy reasons for admitting in evidence as exceptions to the without prejudice rule only the very clearest of cases. Unless this highly beneficial rule is most scrupulously and jealously protected, it will all too readily become eroded."
[37]The sort of case where this exception has traditionally been applied is where there has been fraud or blackmail. It was extended to cases of discrimination by the EAT in BNP Paribas v Mezzotero [2004] IRLR 508 and that principle was applied in the Brunel University case in the Employment Appeal Tribunal. The Court of Appeal left open whether the exception had properly been permitted to operate in those cases. However, in the Fincken case itself the court held that the exception did not apply merely in order to demonstrate that evidence given by affidavit was inconsistent with what had been said in "without prejudice" negotiations and may have demonstrated that the party was lying.

Lord Justice Rix said this:

"It is, of course, distasteful for this or any court to avert its eyes from an admission which, subject to any point about value, appears to incriminate Mr Fincken in lying in a sworn document. However, in the tension between two powerful public interests, it seems to me that that in favour of protection of the privilege of "without prejudice" discussions holds sway – unless the privilege is itself abused on the occasion of its exercise."
[38]We have no doubt that in the light of that judgment the alleged impropriety here - seeking re-engagement when that has already been refused - does not begin to attract the exception. In any event in our judgment there is nothing in the without prejudice negotiations which demonstrated any impropriety by the Claimant. He did not use it as a cloak for any improper behaviour. Nor does it even suggest that any other actions are morally culpable, or that any statements he has made are false.[39]Ms Kurji also relied very heavily on the decision of the Court of Appeal in Muller v Linsley and Mortimer [1996] 1 P.N.L.R.74 which would allow the evidence to be adduced even where there was no "unambiguous impropriety". The rationale of the public policy argument was said to be that it provides an exception to the principle on admissions, namely that statements or conduct of a party are always admissible to prove any fact which is thereby implicitly or expressly admitted or asserted However, that case was one where the without prejudice rule was being relied upon against a party who was not party to the original negotiations. The Court of Appeal held that the only justification for the rule in that context was public policy, and the underlying policy did not require withholding the documents in the circumstances of that case. However, in this case the justification is also implied contract, and the Muller case does not touch on that situation: see the comments in Phipson on Evidence (16 th edn. Para22-24 to 22-26.)[40]For all these reasons therefore, in our judgment, subject to the possibility that there may have been a bilateral waiver of the privilege on this occasion, there should have been no reference to the fact that an offer had been made. Is the offer relevant to whether the order of re-engagement should be made?[41]We turn to the second ground of appeal. It is submitted that even if the offer could properly be considered, the Tribunal erred in the significance they gave to it.[42]We accept that the reference to mitigation in the context of this issue was unhelpful. But the thrust of the decision is clear. The Tribunal considered that it was not appropriate to make an order because of the combination of the fact that the offer had been made and rejected, and that the post had now been permanently filled. We have no doubt that these were relevant factors to take into account.[43]The fact that a permanent replacement has been given a job is not of itself a factor which can be taken into account when re-engagement is being considered, as section 116(5) makes plain. But section 116(6) provides that it is relevant where the employee has not indicated within a reasonable period that he wishes to be reinstated or re-engaged. It would be extraordinary if the Tribunal could not take into consideration the fact that the employer has heard from the employee, and that he does not want re-engagement. We would accept that it is not necessarily decisive, but it is plainly relevant.[44]In our view, on the assumption that the fact of the refusal was properly before the Tribunal, they were fully entitled to find that it was not appropriate to order re-engagement.[45]If, however, the fact of the offer should not have been before the Tribunal, then its reasoning cannot be sustained. Ms Kurji submitted that there was still a proper basis for refusing to make the order, namely the time elapsed since dismissal and the fact that the post had been filled. There may well be a powerful case to that effect, but it was not the basis on which the Tribunal refused to make the order, and it is for the Tribunal and not this court to determine that issue. Mitigation.[46]The third issue raises the question whether the Tribunal was entitled to limit the compensation to the period when the Claimant obtained a new job. The basic principle enunciated in section 123 of the 1996 Act is that the compensation is such amount as is just and equitable "having regard to the loss sustained by the complainant in consequence of the dismissal." In Ging v Ellward (Lancs) Ltd (1978) [1991] ICR 222n the EAT (Arnold J presiding) held that the tribunal should always assess compensation up to the date of the hearing and that although it should give credit for sums earned in other employment, it should not treat the taking of alternative employment as breaking the chain of causation. Accordingly, if the job has been lost by the date of the hearing, the loss subsequent to that second dismissal should be included in the calculation.[47]The EAT adopted a different approach in Courtaulds Northern Spinning v Moosa [1984] IRLR 43 (Browne Wilkinson P presiding). In that case a job had been taken and lost by the time the Tribunal came to assess compensation. The new job had lasted some eighteen months. The EAT held, overturning the decision of the Employment Tribunal, that the loss consequent upon dismissal from the second employment was not to be laid at the door of the original employer. However, in reaching that conclusion the EAT put considerable weight on the fact that the employee had worked in the new job for over a year and therefore had obtained unfair dismissal rights as against that employer. Ging was explained on the basis that there was no argument based on the lack of causation and that the job there had been held for only a few weeks and in retrospect could clearly be seen to have been temporary.[48]The issue was considered by the Court of Appeal in Dench v Flynn & Partners [1998] IRLR 653 . The facts are very similar to those in this case. The employee was an assistant solicitor who was dismissed from her employment on grounds of redundancy. She obtained alternative employment, intended to be permanent, but which proved to last for only a limited period as she was dismissed two months into a three month probationary period. The Employment Tribunal held that since she had taken a permanent job at the same salary, that brought an end to her recoverable loss. The fact that she was dismissed so soon into the new employment was unfortunate but that did not make it appropriate to visit the consequences of her subsequent financial loss on the first employer.[49]The Employment Appeal Tribunal dismissed the appeal, holding that the Tribunal was entitled to reach that view.[50]The Court of Appeal upheld the Claimant's appeal. They rejected an observation by the EAT in Whelan v Richardson [1998] IRLR 114 that the loss flowing from a dismissal automatically comes to an end once permanent employment is obtained. Beldam LJ, with whose judgment Mummery LJ and Sir Christopher Staughton agreed, said that it was wrong to conclude in every case that the taking of new employment necessarily broke the chain of causation. Beldam LJ said this (paras 19-21):
"…No doubt in many cases a loss consequent upon unfair dismissal will cease when an applicant gets employment of a permanent nature at an equivalent or higher level of salary or wage than the employee enjoyed when dismissed. But to regard such an event as always and in all cases putting an end to the attribution of the loss to the termination of employment cannot lead in some cases to an award which is just and equitable. 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. 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."
[51]Ms Kurji submits that the Tribunal here was entitled to conclude that the taking of the new job should be the cut off date for assessing loss. Nothing in Dench precludes that approach.[52]We do not agree. In our judgment, the Tribunal made the same error in this case as was made by the Employment Tribunal in the Dench case. They seem to have simply assumed that the obtaining of permanent employment necessarily broke the chain of causation.[53]Ms Falade submits that in fact it is obvious in this case any tribunal, properly applying the principles identified in Dench , could only reach the conclusion that the taking of the job for the limited period did not break the chain of causation, and that the Tribunal should have treated the loss suffered after the second dismissal as still causally linked to the first dismissal.[54]We agree that in the unusual circumstances here that was the only proper conclusion open to the Tribunal. We have seen the Claimant's witness statement. It contains, we are told by both parties, the only material facts about that job. It was plainly different to the former job and it came to an end because the Claimant did not satisfy his employers that he was the right man for the job. Here it was obvious when the job was taken that it may only last for the probationary period, and that is in fact what happened.[55]We do not suggest that in all cases the fact that the job was of relatively short duration will inevitably mean that causation is not broken. It depends on all the circumstances. The reason why the employee lost the second job may have a bearing on the question. If it is for culpable misconduct, for example, one can readily see how that might break the chain of causation (although we must emphasise that tribunals must not become embroiled in satellite litigation as to the precise circumstances in which the second dismissal took place). But there is no evidence or suggestion that that was the situation here. Should loss be assessed on a higher salary?[56]Finally, in the last ground of appeal it is submitted that the loss is actually the amount the Claimant would have earned had he not been dismissed. There is no doubt that, in principle, that is right. If, for example, the Claimant would have had a pay increase in his old job had he remained in employment, then that is part of the financial loss he has suffered by losing his job. In this case it is submitted that if the employee had not been unfairly dismissed he would have been given a different job at a higher salary than he was earning at the date of dismissal.[57]Ms Kurji submits that the evidence does not support that. She may well be right, but the Tribunal did not consider this argument (no doubt because on their finding that the loss only had to be assessed up to 23 October they did not have to). The issue of compensation has to go back to the Tribunal in any event and they should consider this issue then. Disposal.[58]The appeal succeeds in part. The Tribunal will have to assess whether there was a bilateral waiver of the without prejudice discussions. If there was not, they will then have to reconsider the question whether re-engagement is appropriate. If there was, the decision not to order re-engagement stands.[59]In any event they will have to consider compensation on the basis that the Respondent remains liable for losses flowing after the dismissal from the second employment. The obtaining of the second job did not in this case break the chain of causation. It will be for the Tribunal to determine over what period the losses should be assessed, and whether it should assess that loss on the basis that the Claimant's salary would have been increased.[60]We have considered whether the matter should go back to the same or a different tribunal and accept Ms Falade's submission that it should be different.[61]The scope of the remaining issues is limited, as is the evidence. It will be for the tribunal to decide what additional evidence, if any, is required in the assessment of compensation. As to the question of waiver, clearly they will have to hear evidence about the circumstances in which the documentation came before them. If, as seems likely, the legal representatives have to give evidence on that matter, they will need to consider whether it is appropriate that they should also continue to represent the parties.

Cited in 1 later judgment