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United Kingdom Employment Appeal Tribunal


You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Holmes v Qinetiq Ltd (Age Discrimination) [2016] UKEAT 0206_15_2604 (26 April 2016)
URL: http://www.bailii.org/uk/cases/UKEAT/2016/0206_15_2604.html
Cite as: [2016] IRLR 664, [2016] ICR 1016, [2016] UKEAT 0206_15_2604

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Appeal No. UKEAT/0206/15/BA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 26 April 2016

 

 

 

Before

THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

(SITTING ALONE)

 

 

 

 

 

 

 

MR A HOLMES                                                                                                       APPELLANT

 

 

 

 

 

QINETIQ LIMITED                                                                                             RESPONDENT

 

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 


 

 

 

 

 

 

 


APPEARANCES

 

 

 

 

 

For the Appellant

MR ALLAN ROBERTS

(of Counsel)

Instructed by:

Jackson Osborne

Sophia House

28 Cathedral Road

Cardiff

CF11 9LJ

 

 

For the Respondent

MR MOHINDERPAL SETHI

(of Counsel)

Instructed by:

Osborne Clarke

2 Temple Back East

Temple Quay

Bristol

BS1 6EG

 

 

 

 


SUMMARY

AGE DISCRIMINATION

UNFAIR DISMISSAL - Compensation

 

1.                  The Employment Tribunal was correct to refuse to award any uplift in compensation pursuant to section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended).  No disciplinary procedure was invoked in this case because, apart from the effects of his illness, the Claimant was able to perform the job of security guard and there was no suggestion that his conduct or performance gave rise to a disciplinary situation or involved culpable conduct.  That meant the employer was not required to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures and the uplift under section 207A(2) was not available.

 

2.                  The question whether and when in future the Claimant would obtain alternative employment at an equivalent salary to that which he had with the Respondent did not depend on findings of fact but on an assessment that involved speculation and prediction.  The ET’s conclusion that the Claimant would have obtained such employment by 6 September 2018 so that full loss ceased at that date was sustainable on the evidence and assumptions made and not arguably perverse.

 

3.                  Travel costs associated with getting to work in the future were not raised as an issue for the ET to determine.  They were not identified with any particularity or quantified in any way, even on a speculative basis.  It was not therefore an error for the ET not to take them into account in determining pecuniary loss in the period from 7 September 2015 onwards.

 

4.                  The appeal therefore failed.


THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)

 

Introduction

1.                  By a Judgment with Reasons promulgated on 8 April 2015, the Employment Tribunal (comprising Employment Judge Barry Clarke and members, Mr Meredith and Ms Williams) awarded the Appellant compensation for unfair dismissal and unlawful discrimination.  This appeal concerns challenges to the level of compensation so awarded.  The grounds raise the following issues:

(i)      whether the Tribunal was correct to refuse to award any uplift in compensation pursuant to section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (as amended) (“TULR(C)A”);

(ii)     whether there was evidence to support the conclusion that suitable alternative employment would have been obtained by 6 September 2018 so that full loss ceased at that date; and

(iii)    whether travel costs could properly be ignored or not taken into account in determining pecuniary loss in the period from 7 September 2015 onwards.

 

2.                  I refer to the parties as they were before the Tribunal.  The Claimant is represented by Mr Allan Roberts of counsel, who did not appear below.  The Respondent resists the appeal and appears by Mr Mohinderpal Sethi of counsel, who did appear below.  Both counsel have assisted me with clear and careful submissions on each of the three issues.

 

3.                  It is unnecessary to rehearse the facts in any detail.  By way of brief background only, the Claimant (who is disabled) worked for the Respondent as a security guard from 1 July 1996 until he was dismissed with effect from 17 April 2014.  He was based at Aberporth in Wales.  He was dismissed on grounds of ill health on the basis that he was no longer capable of doing the job of security guard.  He had had a number of extensive absences from work as a result of pain he experienced in his back, legs and hips.  The Respondent conceded that the dismissal was unfair because it failed to obtain an up to date Occupational Health report about the Claimant’s ability to provide reliable attendance at work after undergoing an operation in April 2014 that effectively resolved the pain he had been experiencing prior to that operation.  There was a contested Remedy Hearing at which the Tribunal heard evidence from the Claimant himself and from the Respondent’s witness, Morag Morrison.  She was the manager of security offices across all of the Respondent’s sites and gave evidence having regard to her knowledge and ability to comment on the labour market.  The parties have been able to agree, in addition to the witness statements and schedule of job vacancies available, a note of the evidence given during the course of the hearing both in chief and in cross-examination by the Claimant and Ms Morrison.

 

Ground 1: ACAS Code and Uplift

4.                  The Tribunal dealt with the question whether or not the power under section 207A(2) and (3) TULR(C)A to increase or decrease an award of compensation for failure to comply with the requirements of any relevant ACAS Code of Practice extends to dismissals on grounds of ill health at paragraphs 11 to 20 of the Reasons.  The Employment Tribunal concluded that the relevant ACAS Code of Practice does not apply to ill health dismissals.  Its reasons, which are clear and compelling, were as follows.  First, properly construed, the Code of Practice does not apply to internal procedures operated by an employer concerning an employee’s alleged incapability to do the job arising from levels of sickness absence.  It is limited to internal procedures relating to culpable misconduct or culpable poor performance.  Secondly, the concept of incapability in section 98(2)(a) of the Employment Rights Act 1996 encompasses poor performance on one hand and medical incapacity on the other.  The former involves an element of culpability, whereas the latter involves no culpability.  Thirdly, the presence or absence of culpability was central to the decision in Lund v St Edmund’s School Canterbury UKEAT/0514/12 and to the question whether or not the Code applies.  Fourthly, disciplinary procedures were not invoked in this case because, apart from the effects of his illness, the Claimant was able to perform the job of security guard and there was no suggestion that he was culpable in relation to his conduct or performance.  That meant that the employer was not required to follow the ACAS Code of Practice and that section 207A(2) did not apply.  At paragraph 2.2 the Tribunal accordingly held:

“2.2. No uplift will be made under Section 207A [TULR(C)A].  This is because the ACAS Code of Practice on disciplinary and grievance procedures does not apply on the facts of this case (namely a capability dismissal relating to the claimant’s ill health and which had no disciplinary component).”

 

5.                  Section 207A(1) TULR(C)A provides that the section applies to proceedings before an Employment Tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.  It is common ground that the section applies to the proceedings in this appeal.  Section 207A(2) provides:

“(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that -

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure is unreasonable,

the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.”

 

A parallel power to reduce any award by no more than 25 per cent in respect of unreasonable failures by the employee to comply with a relevant Code of Practice is provided by sub-paragraph (3). 

 

6.                  The ACAS Code of Practice on Disciplinary and Grievance Procedures 2009 is a relevant Code of Practice for the purposes of section 207A.  It was produced under the authority given to ACAS by section 199 TULR(C)A and came into effect on 6 April 2009.  It had, however, been in existence in more or less similar form for some decades before that date.  It has also since been revised in the form of the 2015 Code of Practice on Disciplinary and Grievance Procedures, but the revisions are not material for the purposes of this appeal.

 

7.                  Paragraph 1 of the Code provides:

“1. This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations in the workplace.

● Disciplinary situations include misconduct and/or poor performance.  If employers have a separate capability procedure they may prefer to address performance issues under this procedure.  If so, however, the basic principles of fairness set out in this Code should still be followed, albeit that they may need to be adapted.

● Grievances are concerns, problems or complaints that employees raise with their employers.

This Code does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry.”

 

Accordingly, the Code applies to disciplinary and grievance situations but identifies two particular situations to which it does not apply: dismissals for redundancy and on the non-renewal of fixed term contracts on their expiry.  Save for those two situations, it otherwise applies to all disciplinary and grievance situations. 

 

8.                  This appeal is concerned only with “disciplinary situations” and so far as these are concerned, I agree with Mr Roberts that the definition in the Code is not exhaustive and that the Code does not limit “disciplinary situations” to those involving misconduct and poor performance.  The use of the word “include” supports that conclusion.

 

9.                  Mr Roberts submits that if Parliament intended dismissal for capability or ill health reasons to be outside the scope of the Code it would have excluded those expressly just as it did dismissals for redundancy and non-renewal of fixed term contracts on their expiry, and the fact that it did not do so supports his submission that the Code applies equally to internal procedures leading to such dismissals so that the 25 per cent uplift under section 207A(2) applies.

 

10.              He makes the following points in support of that contention.  First, he refers to the fact that the Employment Act 2008 repealed the Employment Act 2002 and with it the statutory dispute resolution procedures and uplift regime that applied through the 2004 Regulations.  At the same time as repealing that regime, the Employment Act 2008 introduced section 207A and the availability of an uplift for non-compliance with a relevant ACAS Code.  He submits that ill health dismissals were undoubtedly covered by the former regime as being within disciplinary procedures operated by employers and that there is no policy reason for their exclusion by the regime that replaced the 2004 Regulations.  I do not accept that argument.  The short answer to it is that the regime under the Employment Act 2002 (Dispute Resolution) Regulations 2004 applied where disciplinary action or dismissal was contemplated.  In those Regulations, dismissal is not confined to dismissal arising from disciplinary action but extends to dismissal for all reasons save those expressly excluded.  Regulation 4 dealt with exclusions and did not include capability or ill health.  Accordingly, a dismissal for capability or ill health, not unnaturally, came within that regime.  That does not, however, mean that disciplinary action or a “disciplinary situation” is to be construed as extending to cover capability generally or ill health in particular.

 

11.              So far as the meaning of “disciplinary situation” is concerned, Mr Roberts submits that it is a wide term that means the setting of standards of behaviour and norms required and extends to a situation involving ill health.  Indeed, he went further in the course of submissions and submitted that a dismissal for any reason except those expressly excluded by paragraph 1 of the Code would fall within the disciplinary situation contemplated by the Code and the Code would accordingly apply.  Again I do not accept that argument.  In my judgment, the word “disciplinary” is an ordinary English word.  A disciplinary situation is a situation where breaches of rules or codes of behaviour or discipline are corrected or punished.

 

12.              When an employee breaks rules or codes of behaviour, that is generally described as misconduct and gives rise to a disciplinary situation.  Equally, an employer may have expectations about the way in which a job is to be performed and the minimum standards to be maintained.  Where those expectations or standards are not met, that also gives rise to a disciplinary situation in respect of the poor or inadequate performance that arises.  It is obviously correct, as Mr Roberts submits, that the Code is silent on the question of whether capability dismissals are encompassed within it and makes no express reference to these as either included or excluded.  However, paragraph 1 in particular and the subsequent paragraphs of the Code demonstrate that it is intended to apply to any situation in which an employee faces a complaint or allegation that may lead to a disciplinary situation or to disciplinary action.  Disciplinary action is or ought only to be invoked where there is some sort of culpable conduct alleged against an employee.  If the employee faces an allegation of culpable conduct that may lead to disciplinary action, whether because of misconduct or poor performance or because of something else, the Code applies to the disciplinary procedure under which the allegation is investigated and determined.  In other words, the Code applies to all cases where an employee’s alleged actions or omissions involve culpable conduct or performance on his part that requires correction or punishment.  Where there is no conduct or performance on the part of an employee that requires correction or punishment giving rise to a disciplinary situation, and most obviously that will be where no culpability is involved, disciplinary action ought not to be invoked and would be unjustified if it were.

 

13.              While misconduct obviously involves culpable conduct, poor performance is capable of involving both culpable and non-culpable conduct.  Where, for example, the poor performance is a consequence of genuine illness or injury, it is difficult to see how culpability would be involved or disciplinary action justified.  Where an employee is absent through illness or ill health leading to dismissal, disciplinary action cannot ordinarily be invoked, and without more, the Code does not apply.  The position is different where the ill health leads to a failure to comply with sickness absence procedures or an allegation that the ill health is not genuine.  In those cases, however, any disciplinary procedure invoked would be invoked to address the alleged culpable conduct on the employee’s part rather than any lack of capability arising from ill health.  That conclusion is supported by the unreported decision of the Employment Appeal Tribunal (Keith J) in Lund, which, as the Employment Tribunal observed, emphasised the presence or absence of culpability as central to the question of whether the Code applies.

 

14.              Mr Roberts relies on Bethnal Green & Shoreditch Education Trust v Dippenaar UKEAT/0064/15 and in particular paragraphs 54 and 55 to support his submission that the Code applies to dismissals on broader grounds than simply those involving culpability.  I do not accept that Bethnal Green supports his case.  In Bethnal Green the employer circumvented its own capability process and used a procedure designed to address the employee’s alleged inadequate or deficient performance.  Since that was the process adopted by the employer and since the employer was held to have failed unreasonably to comply with the ACAS Code, an uplift applied.  The fact that the Employment Tribunal rejected the employer’s reason for dismissal ultimately did not rewrite history.  The alleged poor performance in that case was not as a consequence of ill health.  To the contrary, the employer alleged culpable poor performance, and although that was disputed by the Claimant and ultimately not found to be genuine it was on that basis that the ACAS Code applied.  The decision does not otherwise engage with or address the questions raised on this appeal.  In my judgment, if an employer chooses to proceed by reference to the ACAS Code on the basis that the situation with which it is concerned is a disciplinary situation, whether that is right or wrong, or if the employer ought to have treated the situation as a disciplinary situation, the Code of Practice concerning disciplinary and grievance procedures is engaged, and any failure to comply may be met with an uplift in compensation.

 

15.              For those reasons, which are, although expressed slightly differently, broadly the reasons given by the Employment Tribunal in this case, properly construed the Code of Practice does not apply to internal procedures operated by an employer concerning an employee’s alleged incapability to do the job arising from ill health or sickness absence and nothing more.  It is limited to internal procedures relating to disciplinary situations that include misconduct or poor performance but may extend beyond that, and are likely to be concerned with the correction or punishment of culpable behaviour of some form or another.

 

16.              On the Employment Tribunal’s findings of fact, which are amply supported by the evidence, no disciplinary procedure was invoked in this case.  That is because, apart from the effects of his illness, the Claimant was able to perform the job of security guard, and there was no suggestion that he had breached the Respondent’s rules of conduct or discipline so as to merit disciplinary action or to give rise to a disciplinary situation.  That meant that the Respondent was not required to follow the ACAS Code of Practice on disciplinary procedures and that the uplift under section 207A(2) was not available.  The appeal on this ground accordingly fails.

 

Grounds 2 and 3

17.              I turn to address the two quantum grounds.  In relation to quantum, the Claimant’s case was that he would never return to work at a salary equivalent to the salary he had been earning with the Respondent and that he therefore suffered career long loss of earnings following his dismissal.  That case was rejected by the Tribunal, which instead identified four relevant periods of loss as follows:

(i)      Period A related to the period of past loss running from 18 April 2014 to 6 March 2015.  Period B concerned the period 7 March 2015 to 6 September 2015.  The Tribunal awarded full loss for both period A and period B, and there is no challenge to those findings.

(ii)     In relation to loss from 7 September 2015 onwards, the Tribunal awarded partial loss for the three year period to 6 September 2018.  It concluded that the Claimant would continue to work in seasonal short term or part time work at the National Minimum Wage only during this three year period and assessed that he was likely to be out of work for the equivalent of four months of the year during each of those years.  It identified the cut off for this period as 6 September 2018 on the basis that it was likely that the Claimant would obtain alternative employment on a full time basis and at a level at least equivalent to the salary he had earned with the Respondent by 6 September 2018.  That three year period is described as period C.

(iii)    In relation to loss from 7 September 2018 to the Claimant’s retirement date on 28 March 2030, the Tribunal awarded pension and share scheme loss only.  That period is described as period D.

 

18.              The Employment Tribunal made findings of fact on which it relied in reaching its conclusions on periods C and D, including the following.  First, while employed by the Respondent the Claimant was not performing a public facing role but had reception duties for contractors, sentry duties, CCTV observation duties, all mostly at Ministry of Defence owned sites.  In contrast, the security industry jobs advertised and available were in the retail sector in stores in relatively small towns in west Wales.  When referring to security industry jobs advertised and available, the Tribunal was referring, I infer, to the list of available vacancies in a six week period from early January to mid-February 2015 provided by the Respondent.  Secondly, the Tribunal found that the Claimant was entitled to feel inhibited by his disability - he was an amputee - from applying for security industry jobs in the retail sector in stores in small towns in West Wales, but only for a relatively short period until he could build up his confidence.  He had performed part time clerical work at the minimum wage for a lawnmower maintenance business owned and operated by his brother-in-law, and it was reasonable for him to focus on part time work of this kind for a period of time.  Thirdly, the Tribunal said that it was impressed by the Claimant, describing him as a strong character working through pain and disadvantage associated with his disability.  That strength of character, the Tribunal found, would help the Claimant to find and to keep a job he liked.  The Tribunal concluded that it was likely - and it said expressly that this was not a mere optimistic hope - that when the litigation was over he would rediscover his confidence and start looking for reasons why he could do a job.  Fourthly, the non-legal members of the Tribunal had considerable experience of the job market in west Wales and the security industry and brought that knowledge to bear in this case.

19.              The second issue raised on this appeal challenges as in error, the conclusion that the Claimant would find suitable alternative employment at an equivalent salary to that which he had earned with the Respondent, by 6 September 2018.  He submits that there was no evidence to support that conclusion and the Tribunal gave inadequate weight to evidence provided by the Respondent about pay levels in the security industry, in particular to evidence that it is normal to pay the minimum wage only and to the limited evidence about vacancies provided by the Respondent.

 

20.              In considering this ground of appeal it is important to have regard to the nature of the task that the Employment Tribunal was conducting.  Section 123 ERA 1996 requires the Tribunal to determine what compensation is just and equitable having regard to the loss sustained by the Claimant in consequence of dismissal.  The assessment is made on a tortious basis but is a matter for the commonsense practical experience and sense of justice of Employment Tribunals sitting as an industrial jury, particularly where questions of future loss arise.  The fact that these are questions of impression and judgment means that the Employment Appeal Tribunal should tread warily on appeal.  Any assessment of future loss is by its nature a prediction about what may or may not happen in the future and inevitably involves a speculative element.  The task is therefore for Employment Tribunals to consider all relevant evidence, and identify that evidence which can be relied on to predict what is likely to happen in future.  A degree of uncertainty is inevitable in such an exercise, but that does not prevent a Tribunal from conducting such an exercise.

 

21.              Moreover, the authorities show that it is a rare case where it is appropriate for a Tribunal to assess compensation over a complainant’s career lifetime.  The usual approach is to assess loss up to a point where a Tribunal is satisfied, having regard to all of the uncertainties and vagaries of life, that the individual is likely to get an equivalent job.  The speculative nature of the exercise means that it is possible that the individual will in fact get an equivalent job sooner or might be unlucky and take longer to do so.  Thus the Tribunal’s prediction will not necessarily be right, but those outcomes are inevitably factored into its assessment.  Since the calculation of compensation for future loss is both speculative and predictive, there is no certainty about what will happen, but rather a range of possibilities and chances of different things occurring.  The assessment is not a question of fact but a question of carrying out an assessment on the basis of the Tribunal’s best estimate about the future.

 

22.              Mr Roberts accepts that this was a speculative exercise.  He makes two essential points in support of his perversity argument.  First, he contends that the Employment Tribunal was perverse in its finding because there was no evidence of a job guaranteeing the Claimant an equivalent salary within the 3½ years in question.  Secondly, he submits that the Employment Tribunal failed to take account of the evidence of Ms Morrison and of the jobs actually available in the six week period from early January to mid-February 2015 in making its assessment; or alternatively, the Employment Tribunal supplanted that direct evidence with its own local knowledge, but without identifying what the local knowledge was or giving the parties an opportunity to deal with it.

 

23.              I disagree with both points.  The absence of evidence guaranteeing the Claimant employment at an equivalent salary in the future is irrelevant in context.  The Tribunal was, as it recognised (at paragraph 39), required to perform an exercise on limited information available, in imperfect circumstances and involving speculation about what the future might hold.  It was fully entitled to reach the conclusion that the pessimism expressed by the Claimant about his future prospects was misplaced.  It was entitled to have regard to the non-legal members’ considerable experience of both the job market in West Wales and the security industry and to bring that knowledge to bear in this case.  

 

24.              Looking at the Tribunal’s Judgment as a whole, I find nothing to suggest that the Tribunal ignored the evidence of Ms Morrison and the vacancy list or used its own local knowledge to supplant that evidence.  This was an essentially speculative exercise.  The Tribunal had evidence from the Claimant as to his positive and determined attitude towards obtaining alternative employment and about the job search.  It had evidence about the work he had obtained in the period to date that supported its conclusions about his determined attitude and willingness to work.  It also had evidence from the Respondent about the variety of jobs available, and there is nothing in the decision to suggest that it ignored that material and supplanted it with its own local knowledge.  To the contrary, it seems to me that the references to employment at a salary that would be higher than the National Minimum Wage shows that the Tribunal was alive to the evidence of Ms Morrison about the security industry in general.

 

25.              Moreover, whilst it is right to say that there were only two jobs where the top of the salary range identified exceeded pre-dismissal levels of earnings, nevertheless there was evidence in a short snapshot period available to the Tribunal of jobs that might be available to this Claimant at his pre-dismissal earning level.  The Tribunal was required to consider the snapshot evidence of vacancies, the Claimant and his character and determination, and to make a prediction or a best estimate as to what might or might not occur some 3½ years later.  The Tribunal was well placed to make the assessment it did.  It did so on what was necessarily a broad brush basis, but one that set out in sufficient detail the assumptions it made in doing so, and there is no basis for concluding that it either ignored the limited material that was available to be used as a predictor about the future or that it supplanted that evidence using its own local knowledge.

 

26.              As to the procedural unfairness point, I agree with Mr Sethi that if the Tribunal was engaged in making express findings of fact about the job market that were not ventilated with the parties or articulated in the decision, that might well give rise to procedural unfairness.  However, this exercise did not involve questions of fact.  It involved the carrying out of an assessment on the basis of its own best estimate about the future.  The Employment Tribunal was entitled to weigh its local knowledge in the balance without procedural unfairness in doing so in the way that it did.  In those circumstances, the high threshold for a perversity appeal is simply not met, and this ground of appeal also fails.

 

27.              So far as the travel costs issue is concerned, the Claimant contends that these were wrongly ignored by the Tribunal in determining his loss.  Although there is no reference to travel expenses or costs in the Remedy Judgment, in the Reconsideration Judgment promulgated on 29 October 2015 the Tribunal dealt with travel expenses at paragraphs 23 to 36, and it traced the development of the issue of travel expenses over time.  Significantly, at paragraphs 30.2 and 30.3 the Tribunal said the following:

“30.2. In response to questions from the tribunal, Mr Jackson [solicitor for the Claimant below] accepted that the claimant had led no evidence at the previous hearing in March 2015 on the issue of travel expenses, that there had been nothing in his schedule of loss on this matter and that he had made no verbal or written submissions on this matter at the previous hearing.  Mr Jackson said that he could not have been expected to deal with travel expenses until the tribunal had delivered its judgment, because only then had it become apparent that the tribunal thought the claimant would find other work - and which would require travel.

30.3. Mr Jackson maintained that the terms of the judgment left it open to the claimant to negotiate travel expenses with the respondent after we had promulgated our judgment.  He maintained that this was not an application for reconsideration.”

 

28.              At paragraph 32 the Tribunal concluded that the question of travel expenses was not left open to the parties by the Tribunal and that the Tribunal did not deal with travel expenses “simply because we were not asked to do so”.  At paragraph 34.3 the Tribunal held:

“34.3. Mr Jackson told us that he could not have been expected to deal with travel expenses until the tribunal had delivered its judgment, because it only became apparent at that point that the tribunal thought the claimant would find other work at some point in the future - and which, Mr Jackson deduced, would require significant travel.  We reject that contention.  It would not have been difficult for Mr Jackson to make an oral submission at the hearing in March 2015 that, if the tribunal found that the claimant was able to mitigate his loss, we should take account of the chance that he would have to spend more money commuting to a new job than he spent commuting to the job from which he was dismissed.  Even where the matter had not been mentioned in the schedule of loss, Mr Jackson could still have flagged up the issue as a matter for the tribunal’s consideration.  It might have been that we would have allowed an application to recall the claimant to give further evidence about travelling time to certain jobs, but no such application was made.  We firmly agree with Mr Sethi that it would have been inappropriate for the tribunal to alert Mr Jackson to travel expenses as a head of loss.  In such circumstances the tribunal would indeed have entered the fray.”

 

29.              At paragraph 34.4 the Tribunal said that it had borne in mind that it specifically canvassed with the parties whether they had all the information necessary to perform the quantification exercise that was to follow.  At paragraphs 35.1, 35.3 and 35.4 the Tribunal said the following:

“35.1. The tribunal’s task was to assess the chance that the claimant might find other work between the date of the hearing and his state retirement age, and we attempted that task based upon the limited information available.  It was an inherently speculative exercise.  But it would have been an even more speculative exercise to attempt to deduce from the geography of West Wales how far the claimant might need to drive during Periods C and D (a total period of 14½ years).  The tribunal did not, and was not asked to, make findings of fact about the probable or possible locations of the work that we assessed him as having a measurable chance of obtaining [Original emphasis].  The notion of travel was discussed at the March 2015 [sic] only in the context of whether a commuting time of more than 20 minutes or so would make it reasonable for the claimant to refuse a job.

35.3. Even if we had considered it appropriate to award travel expenses as a head of loss, we would have asked for further evidence from the parties.  Mr Sethi told us that, if he had been warned that the issue would come up during the hearing in March 2015, he would have wanted to question the claimant about less expensive methods of travel, such as public transport alternatives.  There was no sufficient evidence before us today to award the claimant a figure for mileage.  And, as noted above, it would have been possible for the claimant to bring such material to the hearing in March 2015.  This application is, in effect, a second bite at the cherry; and, in our judgment, it is an afterthought.

35.4. The balance of prejudice weighs firmly in the respondent’s favour.  Let us assume for the moment that Mr Jackson is right in saying that the figure for travel expenses is £55,000 (although we think that figure should be treated with great caution).  The respondent must already pay the claimant a six-figure gross sum in compensation and £55,000 would increase it by about 50%.  The fact that the respondent is a corporation does not, by itself, mean that such a sum can easily be absorbed - which Mr Jackson appeared to imply.  In contrast the claimant is not necessarily deprived of his right to seek this sum by bringing proceedings elsewhere arising from his solicitor’s failure (if it can be categorised as such) to raise it as a head of loss before the tribunal.”

30.              Whether or not the claim relating to travel expenses was a new head of loss or an expense the Claimant would incur in securing alternative employment at an equivalent salary, the real question for me, as Mr Roberts submits, is whether this issue was sufficiently before the Employment Tribunal so that it was a live issue that had to be dealt with by the Tribunal.  Mr Roberts took me to the evidence available to the Tribunal on the question of travel or travel expenses.  In his witness statement at paragraph 76 the Claimant explained that he spent many hours looking for a job and dealing with emails about jobs but none had been suitable.  He said:

“76. … Typical issues include jobs often have no or minimal guaranteed hours, or they are minimum wage and involve such travel time and cost and flexible hours so that they are impractical.”

 

31.              At paragraph 77 he referred to a Schedule of Loss.  That Schedule of Loss makes no reference whatever to the costs associated with travelling to alternative work or jobs obtained by the Claimant in the period to the Remedy Hearing or to the prospect of future travel costs associated with future employment.  In the course of cross-examination (by reference to the agreed Note of Evidence) the Claimant made two passing references to the cost of travel.  He referred to the fact that he would be no better off taking a job in Lampeter at £6.50 per hour than in his current part time job with the Shaw Trust; he referred to the distances to Haverfordwest and Carmarthen, which take 45-50 minutes to get to; he said if offered a job for one or three months he would look to see if it was feasible to take the job but circumstances might not allow him to travel owing to the amount of hours offered and the level of pay; and that he would have to factor in the time and cost of getting to a job on a minimum wage in order to determine whether a job was a reasonable one.  Those references to travel were to travel as a reason why a job was not suitable for the Claimant and to resist the argument that he had not acted in reasonable mitigation of his losses by failing to take particular job vacancies that were being advertised.  What the Claimant did not say (whether in his witness statement for the Remedy Hearing, in his Schedule of Loss or in evidence or submissions at the hearing itself) is that he would have to incur expenditure on travel in order to put himself in a comparable employment position; nor did he particularise such travel costs in any form.

 

32.              In these circumstances, it seems to me that it is impossible to see how the Tribunal’s Remedy Judgment can be impugned as in error of law for wrongly ignoring travel expenses.  In my judgment, travel expenses were not raised as an issue sufficiently before the Tribunal to make it incumbent on the Tribunal to take them into account.  The burden was on the Claimant to prove each and every aspect of his loss.  Mr Roberts argued that the Claimant was arguing for career long loss and that it was the Respondent’s case that was preferred, that losses should be limited to an earlier period, but that misunderstands the exercise.  It was for the Claimant to prove his loss on whatever basis that loss was claimed, whether by reference to career long loss or to a shorter period or to partial loss for one period following a period of full loss.  Having failed to make any reference to a particularised claim for travel expenses, it is wholly unsurprising that the Employment Tribunal did not factor these into future periods of loss.  The Claimant was legally represented.  He had the opportunity to argue his case, and to advance the points he wished to pursue.  This ground of appeal is in reality, as Mr Sethi described it, a second bite of the remedy cherry and an afterthought, rather than an error of law by the Employment Tribunal.  It too fails and is dismissed.

 

Conclusion

33.              For those reasons, which I have no doubt will be disappointing to the Claimant, the appeal fails and must be dismissed.  The Claimant does however, have the comfort of knowing that Mr Roberts has said all that could possibly have been said on his behalf and has argued his case most persuasively.


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