Appeal No.UKEAT/0291/04/MAA & UKEAT/0470/04/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 29 October 2004

Before
HIS HONOUR JUDGE PROPHET
MS K BILGAN
MR J MALLENDER

MR PETER DELANEY GREEN	APPELLANT

METROLINE LONDON NORTHERN LIMITED	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS L CHUDLEIGH
(of Counsel)
Instructed by:
Messrs Nabarro Nathanson Solicitors
The Anchorage
34 Bridge Street
Reading 
Berkshire
RG1 2LU	
For the Respondent	MR I MacCABE
Instructed by:
Messrs Moorhead James Solicitors
Kildare House
3 Dorset Rise
London
EC4Y 8EN

SUMMARY

Unfair Dismissal

Contribution and pension loss assessment remitted to same Employment Tribunal for reconsideration.

HIS HONOUR JUDGE PROPHET

1.	Mr Green, who originates from Barbados, was represented by Nabarro Nathanson Solicitors when he presented an application to the Employment Tribunal at London Central in December 2002 against his former employer, Metroline London Northern Limited, for whom he had worked as a bus mechanic.  

2.	There were four complaints in the application, ie race discrimination; disability discrimination; unfair dismissal; and unlawful deductions from wages.  His length of continuous employment was over 21 years ending, according to the application, in dismissal with effect from 15 October 2002.  The employer, also represented by solicitors, entered a defence indicating that all the complaints were resisted.  

3.	A Chairman of the Employment Tribunal held a Directions Hearing on 14 May 2003, one consequence of which was that the first hearing before the Employment Tribunal was a preliminary hearing before Mr Carstairs as the Chairman, and Mrs Bradfield and Ms McCallum as the Lay Members, to determine whether Mr Green suffered from a disability within the terms of the Disability Discrimination Act 1995.  Mr Green represented himself at that hearing and Mr McCabe of Counsel represented the employer.

4.	Mr Green maintained that the treatment he had received from his employers had brought about a mental impairment and it was that which was the disability.  However Mr Green was unable to satisfy the Employment Tribunal that he suffered from a disability and accordingly that meant that his complaint of disability discrimination failed.  

5.	The Employment Tribunal took the opportunity of giving directions in respect of the remaining three complaints, and that included that the remaining complaints would be listed for 15 and 16 January 2004, to include remedy.  That hearing duly took place on those dates, with Mr Bedeau as the Chairman and Mr Mothersdale and Mr Walker as the Lay Members.  Mr Green again represented himself and again Mr McCabe represented the employers.  

6.	One matter quickly cleared up was that Mr McCabe conceded the complaint in respect of unlawful deduction of wages.  Mr McCabe also made another important concession.  That was that Mr Green had been unfairly dismissed.  That left the remedy for unfair dismissal as the only remaining issue in respect of that matter.  The complaint of race discrimination was fought out and the outcome was that the Employment Tribunal decided unanimously that that complaint was not well founded.  Also decided was that in respect of unfair dismissal there was a contribution from Mr Green of 30 percent.

7.	However the assessment of compensation for unfair dismissal was then adjourned to 9 March 2004, the Employment Tribunal noting in its Liability Decision:  

“43.  The parties were unable to furnish up-to-date information regarding the Applicant’s pension position.  The Tribunal, accordingly, adjourned the remedy hearing…”

That was clearly a reflection of the fact that there had been a prior direction that remedy would, in the usual way, have been fully dealt with at the Liability Hearing.

8.	Again the Employment Tribunal gave directions in respect of that further hearing, including:
“44.	 …
(i)	The Applicant to serve a detailed schedule of his losses by not later than 6 February 2004;
	…
(iii)	both parties to write to the Trustees of the Respondent’s pension fund regarding the Applicant’s and the Respondent’s pension contributions and the Applicant’s deferred pension position having regard to his dismissal on 16 October 2002, by not later that 23 January 2004”

9.	When the Employment Tribunal met again on 9 March 2004, Mr Green was represented by Mr Solomon of Counsel, with Mr McCabe again appearing for the employers.  The Employment Tribunal duly assessed compensation in the sum of £30,052.63, which of course took into account the 30 percent contribution.  A Decision with Extended Reasons to that effect was promulgated on 1 April 2004.  

10.	The appeal process which has occupied us today began with an appeal by Mr Green in respect of the 30 percent contribution.  We will call that “the first appeal”.  That Notice of Appeal, dated 24 March 2004, was presented before the promulgation of the Decision following the 9 March hearing.  As drafted by Mr Solomon, it had two grounds.  The first is that the Employment Tribunal erred in finding that Mr Green had contributed to his dismissal by not providing medical information to his employer, that being on the basis that there is no duty on an employee to provide such information.  The second ground has been overtaken, as it were, by Mr Sutton of Counsel, who has taken on the representation of Mr Green, by his seeking to substitute an alternative second ground in a draft amended Notice of Appeal, dated 6 October 2004.

11.	Mr McCabe has agreed to that amendment being made today and the new ground reads as follows:

“In reaching its determination that the Appellant’s conduct had contributed to his dismissal and that it would be just and equitable to reduce his basic and compensatory awards, the Tribunal erred in failing to consider and make appropriate findings as to whether the material conduct was ‘culpable or blameworthy’ applying the guidance of the Court of Appeal in Nelson v BBC No.2 [1980] ICR 110.”

12.	The employers counter to that appeal is that the 30 percent contribution, far from being too high, was actually too low, and accordingly there was a cross-appeal, which we will call hereafter “the first cross-appeal”, submitting that an appropriate figure would be either 100 percent or 75 percent or 50 percent.  The thrust of the cross-appeal is that although Mr Green was certified unfit for work, there was no evidence that he could thereby not attend a fact-finding interview at his place of work.

13.	That appeal and cross-appeal were set down for a short, full hearing before this Appeal Tribunal.  However, when the Decision following the 9 March hearing was promulgated, a further Notice of Appeal, dated 13 May 2004, came in from Mr Green.  We will call that “the second appeal”.  

14.	This time it was submitted that the pension loss assessment was unsatisfactory.  That again opened the way for a second cross-appeal by the employer, in addition to resisting the appeal in respect of pension loss.  That cross-appeal has three heads as set out below:

(a)	The loss at the full rate of pay from 19 September 2002 to 8 July 2004, notwithstanding he was sick and would have been subject to the sick-pay regime in his contract of employment on the basis that the Respondent had substantially caused his ill-health.

(b)	The award of the loss of travel benefits from 1 January 2003 to 31 December 2004, for him and his wife, in the sum of £5,700, excluding the £300 long service award.

(c)	The award of £3,000 for injury to feelings.  It was accepted that the Tribunal was bound by the decision of the Court of Appeal, but it is submitted that the decision is wrong in law and it is known that a decision of the House of Lords is awaited on whether to uphold the Court of Appeal.

15.	That third head has fallen away as a result of the House of Lords decision in Dunnachie v Kingston Upon Hull City Council, the outcome being (this being a concession on behalf of Mr Green which we accept) that the Employment Tribunal’s award for injury to feelings cannot be upheld.

16.	All the above appeals and cross-appeals have been consolidated, and we meet today to deal with them.  Unfortunately Mr Sutton of Counsel is unable to attend today, but Ms Chudleigh of Counsel has been more than an adequate substitute for him.  The ever-present Mr McCabe represents the employer.

17.	Taking then the first appeal on the contribution, it is well known that in general terms, assessing contribution is essentially a matter for the employment tribunal which hears all the evidence and that this Appeal Tribunal will rarely intervene unless it can be decided by us that the employment tribunal went wrong in law by misdirection or reached a decision which no reasonable tribunal could have arrived at.

18.	The thrust of the appeal in this respect is the decision of the Court of Appeal in Nelson v BBC No.2 [1980] ICR 110, where Brandon LJ at page 121 indicates the conduct must be “culpable or blameworthy” for it to be regarded as contributory conduct.  The Employment Tribunal did not, as it might have done, refer to that case.  

19.	We have to say that we have grave doubts about whether it could be in any respect “culpable or blameworthy” for Mr Green not to have advised his employer when he would be medically fit again to attend interview or to seek information regarding that.  After giving the matter our very careful consideration, we have to say that we cannot be satisfied that the Employment Tribunal in paragraph 41 of its Extended Reasons was saying by implication that Mr Green’s refusal to give his consent to a check being made with DVLA was “culpable or blameworthy”.

20.	Accordingly we have decided to allow the appeal and for the matter of contribution to be remitted to the same Employment Tribunal to revisit, and reassess after consideration of the Nelson case.

21.	So far as the first cross-appeal is concerned, the thrust of that has been that although Mr Green was certified as unfit for work, there was no evidence before the Tribunal that he could not have attended a fact-finding interview.  Our view about that is that we do not consider that the Employment Tribunal was unreasonable in deciding that Mr Green was not fit to attend such an interview, bearing in mind that that was part of the disciplinary process.  Furthermore, on page 7 of the Employment Tribunal’s Reasons they say:

“We are satisfied that the Applicant informed the Respondent by telephone on 14 October 2002 that he was unable to attend as he had a medical certificate confirming the diagnosis of Stress, Depression and Tension Headaches, and that he was to refrain from working for two weeks.”

22.	We interpret all that as an indication that the Tribunal was satisfied, as normal employment relations would suggest, that Mr Green’s indication that he could not attend when certified unfit for work would also extend to his attending at his place of work for the purposes of matters relating to discipline.
23.	On that basis, therefore, the cross-appeal is dismissed.

24.	We turn then to the second appeal in respect of pension loss and say straight away that this has caused us some considerable discussion.  The essential problem which has emerged is that it was discovered at lunch during the Liability Hearing that the pension scheme was a final salary scheme and not, as both sides had thought at the outset of the hearing, a money pension scheme.  We are aware, of course, that employment tribunals on a day-to-day basis frequently have to do the best they can in pension loss assessments, with less than all the available information and often without financial or actuarial evidence being put to them.  Furthermore, a claimant has to prove his loss, as Mr McCabe reminds us, and the solicitors for Mr Green could be said to have had more than adequate time to prepare for the 9 March hearing.  

25.	Nevertheless, despite all that, our conclusion is that this appeal should be allowed and also remitted to the same Employment Tribunal.  It seems to us that with the information coming, as it did, when it did, the Employment Tribunal could not satisfactorily progress to making a proper assessment of pension loss in order to do justice to the case without giving both parties an opportunity to produce further information.  We are unclear as to what the Tribunal had in mind when it records in its Decision that “Mr Solomon reserved his position” in regard to pension loss, but it does seem to be an indication that the Employment Tribunal was less than happy itself about making its assessment once it transpired that the scheme was a different one to what they had originally thought.  

26.	In order for justice to have been done, it seems to us that the Employment Tribunal should have fully taken into account the nature of the scheme once it was revealed to them, and its effect on the assessment of loss for Mr Green.  Although, therefore, we have found it a rather difficult balancing exercise, bearing in mind, as we have already indicated, that employment tribunals often have to do the best they can on the information they have, our conclusion is that this part of the appeal should be allowed and remitted for reassessment to the same Employment Tribunal.

27.	Finally, therefore, we come to the second cross-appeal where Mr McCabe has made a strong submission that there was no factual basis for the Employment Tribunal to find that Mr Green’s dismissal substantially caused his illness.  Mr McCabe points out that following his suspension on full pay, arising from the conduct which led the Employment Tribunal to make a finding of contribution, Mr Green submitted sick-notes from 24 September 2002, which indicated stress and nervous debility, and thus for three weeks prior to his dismissal he was suffering from those complaints.  

28.	However, we cannot see that that necessarily makes the Employment Tribunal’s finding unsafe.  The case of Edwards v Governors of Hanson School [2001] IRLR 733 emphasizes the wide discretion vested in employment tribunals, under section 123 of the Employment Rights Act 1996, to take into account all matters relating to a dismissal in their assessment of compensation, and we agree with Ms Chudleigh that the Employment Tribunal was entitled to look at the whole process leading to dismissal, as well as the fact of dismissal itself.

29.	Accordingly we have concluded that the Employment Tribunal was entitled to find as it did that the assessment of loss was from 19 September 2002 to 8 July 2004 at the full rate of pay.   

30.	There is a further point in the second cross-appeal relating to the travel pass, where Mr McCabe submits that because compensation was cut off at 8 July 2004, that should also extend to the travel pass, but again we cannot think it was completely unreasonable of the Employment Tribunal to have decided to extend that to 31 December 2004, bearing in mind that the travel passes are issued on an annual basis.  Therefore the second cross-appeal is dismissed.

31.	Summarizing the position we have reached therefore, the first appeal is allowed and the matter of contribution remitted to same Employment Tribunal to reassess.  The first cross-appeal is dismissed.  The second appeal is allowed and again remitted to same Employment Tribunal to reassess.  The cross-appeal is allowed to a limited extent, ie that the award of £3,000 for injury to feelings is struck out, but is otherwise dismissed.