THE INDUSTRIAL TRIBUNALS

CASE REF:  01273/07

CLAIMANT:	Tony Meenan

RESPONDENT:	Western Health & Social Care Trust

DECISION ON REVIEW

The decision of the Chairman is that the respondent’s application for a review of the tribunal’s decision in this case should be refused under Regulation 35 (3) of The Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 as there is no reasonable prospect of the decision being varied or revoked.

Constitution of Tribunal:

Chairman:		Mr Cross

Reasons for the Chairman’s decision

 1.	The first part of this application for review is on the ground that the claimant had tendered his resignation from the employment of the respondent on 25th July 2008 with effect from 31st August.  The tribunal had calculated the loss of future salary of the claimant on the assumption that he would continue in the employment of the respondent until November 2008.  The remedy hearing in this matter had taken place on 2nd July 2008.  Thus the respondent did not know of the claimant’s intention to leave his employment when the compensation issues were being argued before the tribunal.  Indeed the claimant’s notice was given between the date of the remedy hearing and the date of issuing of the remedy decision to the parties on 13th August 2008.

 2.	The claimant could, as the tribunal had anticipated in its calculations, have continued in his employment with the respondent until his fixed term contract came to an end on 20th November 2008.  Instead he has decided to emigrate and seek employment in Sweden.  He has to find employment there; this may take some time and in leaving his secure job he puts at hazard the three months further income he would have earned from the respondent.  The tribunal have no evidence that he is going straight into employment in Sweden.  The claimant might have stayed on in his post with the respondent and then obtained a further fixed term or permanent post in the Northern Ireland health sector, in which case he would have suffered no loss. 

 3.	The tribunal can only calculate compensation for future loss on the evidence presented at the hearing and what the tribunal considers to be the likely employment opportunities that may open up for the claimant.  A review of a decision would only be justified if the claimant had hidden evidence of a job that he could go to immediately after the tribunal hearing; or there occurred some fundamental change in circumstances, which rendered the calculations of the tribunal unsound.  This happened in the case of Help the Aged Housing Association (Scotland) Ltd v LC Vidler [1977] IRLR 104.  In that case, to quote from the head note, the English Employment Appeals Tribunal held that:-

“The Industrial Tribunal should have reviewed its assessment of compensation, after it had transpired that after a comparatively short interval of time and contrary to the expectations of the Tribunal, when it originally assessed compensation, the employee succeeded in obtaining alternative employment. In such a case, the Industrial Tribunal must ask themselves whether the forecasts which were the basis of their decision have been falsified to a sufficiently substantial extent to invalidate the assessment and whether this occurred so soon after the decision that a review was necessary in the interests of justice.”

 4.	I have no evidence of this nature in this present case that would suggest that the claimant has gone straight into unexpected employment as was the situation in the case quoted above and I am assisted by the guidance laid down in that case and in the earlier case of Yorkshire Engineering Co Ltd v Burnham [1973] IRLR 316.

 5.	For these reasons I can see no grounds for reviewing the tribunal decision under Regulation 34(3)(d) of the Regulations, (new evidence becoming available since the conclusion of the hearing), or under Regulation 34(3)(e), (the interests of justice require such a review).

 6.	Turning to the second part of the respondent’s request for a review, the calculation of compensation and the percentage possibility of the claimant securing the post from which he was precluded; I hold that the respondent has no reasonable prospect of achieving a variation of the decision.  The tribunal looked into the compensation issue and as stated in its decision was guided by the case of Ministry of Defence v Cannock and others [1994] IRLR 509.  Morrison J said that a tribunal should make sure that the compensation “seems a sensible and just reflection of the chances which have been assessed.”  This was not merely a mathematical calculation based on the number of applicants for the post.  The tribunal was guided by the words of Morrison J which are set out in Paragraph 10 of the Remedy Decision. 

 7.	I can see no grounds in the Regulations to justify a review of the tribunal decision on the compensation awarded, and therefore hold that on both applications of the respondent that the review application is refused. 

Chairman:

Date decision recorded in register and issued to parties: