Appeal No.	 EAT/1303/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 January 2002

Before
MR COMMISSIONER HOWELL QC
MRS T A MARSLAND
PROFESSOR P D WICKENS OBE

MR DHEDHI	APPELLANT

UNITED LINCOLNSHIRE HOSPITALS NHS TRUST
(FORMERLY PILGRIM HEALTH NHS TRUST)	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR
REPRESENTATION
BY OR ON BEHALF OF
THE APPELLANT	

MR COMMISSIONER HOWELL QC

1	In this case which is before us today for Preliminary Hearing Mr Adbul Aziz Dhedhi seeks to have set aside as erroneous in law the decision of the Nottingham Employment Tribunal on the question of the remedy for what the Tribunal had already held had been his unfair dismissal by the Respondents, the United Lincolnshire Hospitals NHS Trust.  The decision of the Tribunal is recorded in the Extended Reasons sent to the parties on 31 August 2001 at pages 6-16 of the appeal file before us.

2	No one appears on Mr Dhedhi’s behalf before us today but we have had the benefit of substantial written submissions which have been submitted on Mr Dhedhi’s behalf by his solicitors in Glasgow, who have written to the Appeal Tribunal saying that they are content that the matter should be determined on the basis of those written submissions on the papers before us and they do not intend to be present or represented at the hearing today.

3	Having considered the written material before us we have been satisfied that there are grounds for directing that this appeal should go before the Appeal Tribunal for a Full Inter Partes hearing and that we accordingly direct.  

4	The case was based on Mr Dhedhi’s allegations which were found proved by the Tribunal in their first decision issued on 28 September 2000, that he had been unfairly dismissed from what was a temporary locum appointment with the Respondent. He had had that temporary employment terminated without being offered the chance, at least, of a permanent consultant post under the “paragraph 5 procedure”.  That was a procedure which the Tribunal found, and indeed it was accepted by the Respondents, was normally applicable to persons holding temporary appointments enabling them to be considered specially for re-grading to permanent appointments when those became available, but was not in fact operated in Mr Dhedhi’s case.  That was the nature of the unfairness found in the way his temporary appointment was brought to an end.

5	The Tribunal on the remedies hearing came to two decisions which are the subject of the appeal before us today.  First, they held that there should be a 20% reduction in the compensatory award they made to allow for the chance that, if Mr Dhedhi had been considered for the permanent post in a fair way, he would not have got it anyway.  Secondly, they directed themselves that the calculation of the compensation for his continuing loss should cease on 21 July 2000 which was the date on which he obtained a further continuing post but still at locum level, albeit at a greater remuneration that he had had in his original locum post.

6	We have been satisfied that there are arguable grounds making it right to direct that the case should go forward to a Full Hearing of the Employment Appeal Tribunal to consider the principles that should be applied in considering compensatory awards in this particular kind of context.  In particular we are satisfied of that even though we have ourselves some reservations about the Tribunal’s approach to compensation being based, as it is argued it should, on assumptions about “what might have been” if Mr Dhedhi had been successful in his aim of obtaining an upgraded consultant post.  Nevertheless, despite that, it may be arguable that the Tribunal in this case reached illogical or inconsistent conclusions in first of all, finding, that if he had not been unfairly dismissed he would have had an 80% chance of a permanent position at a higher grade and therefore was suffering a continuing loss from not being employed at that higher grade after his unfair dismissal, but nevertheless, holding secondly that the chain of causation of the loss which ensued from that dismissal, and the calculation of the loss for which he should be compensated, should stop when he obtained a further appointment on 21 July 2000 even though that further appointment was only at a lower level.  As the Tribunal themselves put it, he had remained:

“…stuck at the locum level.”

with no immediate prospect of being able to get up out of it.

7	We do not say any more except that we direct that there should be a Full Hearing before the Employment Appeal Tribunal on the issues in the Notice of Appeal.  We doubt in practice if paragraph 4 of that Notice of Appeal really embodies a separate point as it relates to expenses after the Tribunal held the chain of causation had been broken.  If their decision on the causation aspect of the matter is reconsidered then it would necessarily follow that the point taken in paragraph 4 would have to be reconsidered as well.  We direct the appeal should be set down in Category B.  Estimated length of hearing one day.  No Chairman’s notes are in our view necessary.  Skeleton arguments should be exchanged between the parties and lodged at the Employment Appeal Tribunal office not later than 14 days before the date to be fixed for the Full Hearing.