Appeal No. EAT/1220/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 March 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MRS R CHAPMAN
MRS M T PROSSER

QC SUPPLIES	APPELLANT

1) MRS S W TURNER 2) MR G A CHRISPIN	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS I OMAMBALA
(of Counsel)
Appearing under the 
Employment Law Appeal 
Advice Scheme  	

JUDGE J McMULLEN QC

1	This is an appeal by the Respondent, QC Supplies Ltd from a Decision of an Employment Tribunal sitting at Leeds under the chairmanship of Mr J A Pickard in July 2001, sent to the parties on 24 August 2001.  

2	The Decision of the Tribunal was that both Applicants succeeded in complaints of unfair dismissal and the non-provision of written reasons.  

3	Extended Reasons were provided and the Tribunal set out the Decision it made in relation to compensation.  The Tribunal was asked to review its Decision on a ground which is not pursued any further and which was resolved by a Decision promulgated on 2 October 2001.  

4	A second application was rejected by the Chairman, exercising his statutory jurisdiction, in a Decision promulgated on 19 November.  Broadly speaking, that Decision, insofar as it deals with the merits of today’s case, was that the point put forward as a ground for review was not argued before the full Tribunal.  The point relates to the assessment of compensation.  So far as now survives from the Notice of Appeal, there is a claim that the Tribunal erred in not offsetting, against the compensatory award, sums paid by the Respondent consisting of a redundancy payment of £920, to Mrs Turner, and payments of notice money to Mrs Turner and Mr Chrispin respectively, of £1,693.20 and £473.60.  

5	At the Tribunal the Respondent was represented by Mr Clavering, its principal Director and the Applicant by Counsel.  Today Ms Omambala, appearing for the Respondent under the ELAAS scheme, has supplemented a Skeleton Argument and a full Notice of Appeal by oral submissions which we find strongly arguable.  

6	The points which we propose to allow to be taken forward to a full hearing are as follows:
1) Paragraph 6.2 of the Notice of Appeal with the additions of the words “against the compensatory award” after “offset” so that it now reads:

“Further, the Appellant contends that the Employment Tribunal erred in law in that it did not offset the monies in the sum of £920 paid by Appellant to the first Respondent”

The basis of that submission is that Court of Appeal in Boorman -v- Allmakes Ltd [1995] IRLR 553 decided that no credit should be given against the basic award for a redundancy when a Tribunal has decided there was no redundancy situation.  The Court, it is said, made no read-through to a compensatory award under section 123 of the Employment Rights Act 1996.  We consider that that is a reasonably arguable point.

2)  No account was taken of the payments made of notice.  The leading authorities appear to indicate that there should have been some set-off, see Addison -v- Babcock [1987] ICR 805 per Ralph Gibson LJ at 813 E.  We consider this, too, is an arguable point since otherwise, the Applicant may obtain double recovery.  That too will go to a full hearing.  

3)  It is further contended that an amount by which there is an excess over the amount paid, pursuant to section 123(7) should also be set off. This should be the subject of a full argument.  In deference to the Decision of the Chairman to refuse a review, on the grounds that the points have not been argued before the Tribunal, we take the view that an unrepresented party, as we find Mr Clavering to be in this case, who has put the raw material of the calculations before the Tribunal in the form of witness statements, setting out the payments his company made, has sufficiently alerted the Tribunal to the process of calculation which is required.  As we see it, once those figures were before the Tribunal, it should have applied its mind to sections 122 and 123.  

7	Had the submissions been made to it which are made to us today, and the Tribunal decided to allow no offsetting, our position here would have been the same; that is, that a reasonably arguable error has been detected and we will allow this case to go to a full hearing.