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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Green v Metroline London Northern Ltd [2006] UKEAT 0096_06_2405 (24 May 2006) URL: https://www.bailii.org/uk/cases/UKEAT/2006/0096_06_2405.html Cite as: [2006] UKEAT 96_6_2405, [2006] UKEAT 0096_06_2405 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MS H PITCHER
MR D WELCH
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MISS LOUISE CHUDLEIGH (of Counsel) Instructed by: Messrs Nabarro Nathanson Solicitors Lacon House Theobald's Road London WC1X 8RW |
For the Respondent | Mr JONATHAN COHEN (of Counsel) Instructed by: Messrs Kimbells LLP Solicitors Harrison Close Knowlhill Milton Keynes MK5 8PA |
SUMMARY
Unfair Dismissal – Compensation, Mitigation of loss
Tribunal found 20% contributory fault and that the employee was not entitled to future pension loss. Were the conclusions justified? Did the Tribunal provide clear reasons to justify the conclusion that had indeed concluded that there would be no further pension loss?
THE HONOURABLE MR JUSTICE ELIAS
"(xi) On 9 September 2002, the Applicant had been called in to see Mr Sheldon in his office. The Shop Steward, Mr Dougie Boyles, was also present. What was of concern to Mr Sheldon was whether the Applicant was lawfully able to drive in the year 2001. On the photo licence it stated that the licence was valid from 15 January 2002. On the counterpart he was able to drive buses from 12 September 1991 to 29 September 2002. There were no endorsements entered on the counterpart. Mr Sheldon had checked with the Respondent's driving school to ascertain whether the documents were in order and could he be satisfied that the Applicant was lawfully able to drive in 2001. He was advised that the counterpart may not necessarily be up to date regarding any endorsements. At the meeting on 9 September 2002, he wanted to check whether the Applicant was lawfully able to drive in that year. He informed the Applicant that the documents seemed to be in order but he wished to check the position in 2001 and requested his permission to speak to the DVLA. This required the Applicant to first make contact with the Agency who would confirm his identity. He would then be required to give his permission for Mr Sheldon to speak to the Agency directly. The Applicant refused to contact the Agency and to give his consent for them to disclose to Mr Sheldon whether he was lawfully able to drive in 2001. As far as he was concerned, his licence was in order and he saw no reason for him to ring the Agency. We do not accept that Mr Sheldon had deliberately stated to the Applicant that he had been banned from driving in 2001, but was likely to have said that based on the advice he had received from the driving school, that the endorsement part of the counterpart licence might not necessarily be up to date. As the Applicant refused to contact the Agency and to give his consent, the meeting came to an end."
"3.9 The Applicant is a qualified and experienced bus mechanical engineer. Applying our industrial knowledge and having regard to Mr Happs' evidence, the Mayor of London is anxious to improve bus and underground services. The Respondent's business has increased in terms of the number of employees by 8% over the previous year. We find as fact that there is in general a demand not only for bus drivers but for engineers capable of servicing passenger vehicles. The Applicant is able to work not only for private companies but for public corporations. He said that he wished now to consider service as a minister of religion but he had not taken any practical steps with regard to pursuing that possible career option. His date of birth is 30 September 1957 and he is currently 46 years of age. We bear in mind that, from the medical evidence adduced, once these proceedings are over, he is likely to be able to work in near future. He has been unable to work since his dismissal. He would, however, have been aware that the Tribunal found in his favour at the last hearing and all that was left was compensation.
3.10 In the near future" or "in the not too distant future" we have construed as meaning that the Applicant is likely to find comparable employment or comparable alternative employment in the next four months, that is, by 8 July 2004. While we are conscious that many private companies are now operating money-purchase pension schemes, there are still a large number of both private, public corporations and local authorities who operate a final salary pension scheme. The Applicant stated that he was likely to obtain comparable employment in nine months. Applying our industrial knowledge, we find that the Applicant would be able to obtain comparable employment to include membership of a final salary pension scheme by 8 July 2004."
We simply note that at paragraph 3.9 there is a finding of fact about the general demand for - amongst others - engineers for servicing passenger vehicles.
"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 provide further information."
"He did not apply for any employment within the public transport sector because he said that it is a closed community and he would be known as someone who had taken his former employers to the Tribunal. We acknowledged that if he had applied for employment with London Underground and was offered a position he would have been in a final salary pension scheme better than the Respondent's. He is able to drive buses and carry out motor engineering work."
Then at paragraph 35 it said this:
"Notwithstanding the statistical evidence regarding the prevalence of occupational final salary pension schemes, what would have assisted the Tribunal would have been attempts on the part of the Claimant to search for employment and then to determine the applicable pension scheme compared with the Respondent's. It was possible for him to have applied to Transport for London where there is a final salary pension scheme which he would be able to benefit from. On the other hand Arriva does not allow new members to join its final salary pension scheme but only its money purchase scheme.
"36. Having considered the law and our findings of fact, we have come to the conclusion that the Claimant had failed in his duty to mitigate his loss by searching for comparable employment. His decision to become a Minister of Religion was a personal matter and was entirely his choice. Arriving at that decision without applying for a suitable comparable employment was in the circumstances unreasonable and can be distinguished from the case on Othet. Further, we accept his evidence, that had he searched for comparable employment he would have obtained it by 8 July 23004 certainly a position in Transport for London would have given him greater final salary pension benefits. It would, therefore, not be just and equitable to award the Claimant pension loss after 7 July 2004."
It therefore made no compensation in respect of future pension loss.
"it has to be shown that if a particular step had been taken, Mr Gardiner-Hill would, after a particular time, on balance of probabilities gained employment, from then onwards the loss flowing from the unfair dismissal would have been extinguished or reduced…"