Appeal No.  EAT/247/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 5th October 1992
	Judgment delivered on 11 November 1992

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR T S BATHO

	MR D GLADWIN OBE

H D PLASTICS LTD	APPELLANTS

MR G S PAYNE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J H RAY
	   (Personnel Consultant)
Professional Personnel
   Consultants Ltd
Godwin House
George Street
Huntingdon
Cambs PE18 6BU

For the Respondent	MR D McGONIGAL
	   (of Counsel)
Messrs Atherton & Godfrey
Solicitors
8 Hall Gate
Doncaster DN1 3LU

	MR JUSTICE KNOX:   H.D. Plastics Ltd ("the Company") appeals from a decision ("the Second Decision") of the Industrial Tribunal sitting at Sheffield on the 18th December 1990 and 29th January 1991 whereby it decided that the applicant Mr G.S. Payne was entitled to compensation amounting to £9,699.   That decision was sent to the parties on the 15th February 1991.   The figure of £9,699 was made up of a basic award of £774 and the statutory maximum award of £8,925 by way of compensatory award.   No deduction was made for what is usually and conveniently called contributory default.  Liability had been decided by an earlier decision  ("the First Decision") of the same Industrial Tribunal sitting on the 6th and 31st July and the 8th August 1990, sent to the parties on the 28th August 1990, whereby it was decided that Mr Payne had been unfairly dismissed and that the case would therefore be listed for remedy.   There was no appeal from the First Decision.

	The issue dealt with in the First Decision was whether, as Mr Payne claimed, he had been constructively dismissed by the way in which he was criticised by his superiors, Mr Mitchell, his immediate line manager and Mr Bell, who was Mr Mitchell's superior.   The Industrial Tribunal upheld that argument, saying, inter alia, that Mr Payne was placed under considerable and, in the Tribunal's view, unnecessary pressure in particular from Mr Mitchell as his immediate line manager and that a memorandum from Mr Bell reflected a personal attack by Mr Bell on Mr Payne on insufficient grounds.   These criticisms were triggered at the outset by Mr Payne's protests at a random visit by Mr Watkins, a national account manager, to a retail outlet for whose supply Mr Payne as a key account manager, was directly responsible.   Mr Payne's objections and written protests to Mr Watkins were described as clearly not entirely diplomatic by the Industrial Tribunal in the First Decision and they drew rebukes from Mr Mitchell and Mr Bell.   However Mr Payne apologised and the Industrial Tribunal held in its First Decision that the matter could and should reasonably have ended at that point.   It did not because subsequent criticisms of Mr Payne were characterised by the Industrial Tribunal as mentioned above.

	The Company was represented by a different person at the hearing leading to the First Decision from Mr Ray, who represented it before us and before the Industrial Tribunal in the hearing that lead to the Second Decision.   The first ground of appeal against the Second Decision was that the Industrial Tribunal prevented Mr Ray from raising any question or making any submissions on Mr Payne's contribution to his dismissal or loss.  The notice of appeal has two clerical errors in the identification of the relevant provisions of the Employment Protection (Consolidation) Act 1978 governing such contribution, which are in fact s.73(7)(B) as regards the basic award and s.74(6) as regards to compensation. Nothing turns on those minor errors.

	Mr Ray identified two matters as the relevant ones which he was prevented from pursuing in relation to contributory default.  The first of these was the admission in further and better particulars given on behalf of Mr Payne on the 30th November 1990 pursuant to an order of the 24th October 1990, that he, Mr Payne, applied for seven jobs between January 1989 and November 1989, a period throughout which he was still employed by the Company, since that employment started in 1986 and did not cease until 2nd March 1990.   The second matter relied upon by Mr Ray was the evidence which Mr Payne gave in cross-examination during the hearing leading to the Second Decision where he is recorded in the Chairman's Notes as having said this:

"I therefore decided to look for alternative employment and would have left if nothing had come up before Rs" (scil. Respondents, i.e. the Company) "had in the meantime offered better, as had been promised."

It would seem to us likely that there is a clerical error in that sentence and that "nothing" should read "something" so that the sentiment would have been that Mr Payne was looking for alternative employment and thinking of leaving the Company if the opportunity arose before the Company offered him what he  claimed was the promised better job. However that may be there seems no doubt that Mr Payne said that he was thinking of leaving the Company.

	The Industrial Tribunal did stop Mr Ray from cross-examining Mr Payne on issues of contributory default on the latter's part.   There were considerable differences of a factual nature between the account given on behalf of the Company of the events of the hearing on the 18th December 1990 in an affidavit given by Mrs Faulkner, the Company's Personnel Manager, on the one hand, and the account given by the two industrial members of the Industrial Tribunal, the Chairman having resigned in the meanwhile, on the other hand.   We must return to that aspect later in dealing with the last ground of appeal, alleged bias on the part of the Chairman.   Fortunately, there is no relevant conflict on the aspect with which we are concerned at this stage, because it was agreed that Mr Ray was indeed stopped from arguing and questioning on the issue of Mr Payne's contributory default. The question therefore is whether that constituted an error of law.

	Mr Ray's submission was that he wished to establish a link between the intention of Mr Payne to leave and the undiplomatic memorandum that Mr Payne wrote to Mr Watkins for which he Mr Payne later apologised.   Secondly Mr Ray said that he wished to highlight the fact that the breach of contract identified in the First Decision as having constituted the Company's constructive dismissal of Mr Payne occurred on the 25th January 1990 but he only left on the 2nd March of that year. He submitted that it was wrong to prevent him from arguing the issues of contributory default by Mr Payne and from asking Mr Payne questions about it. 

	In our view these are misconceived criticisms. The issues concerning Mr Payne's memorandum to Mr Watkins had been dealt with fully in the First Decision and in our view the Industrial Tribunal was justified in not allowing that aspect of the matter to be re-opened in the hearing leading to the Second Decision. Nothing was said in the Company's Notice of Appearance about contributory default nor was the matter raised at any stage before the First Decision.   The point was only raised on the 18th December 1990 before the Industrial Tribunal.   True it is, as Mr Ray reminded us, that there is no express finding on the subject of contributory default in the First Decision.   That was because the subject was not raised.   Mr Ray also relied on the fact that the Chairman of the Industrial Tribunal at the hearing of the 18th December 1990 said, in ruling against Mr Ray's right to pursue the issue of contributory default, that he would give his reasons in writing for doing so and the Second Decision contains no such reasons.   The issue that matters is whether the Industrial Tribunal Chairman was entitled in law to rule as he did and his failure to explain his reasons in writing does not significantly impinge on that question.   An oral ruling was given and that was to the effect that Mr Ray was trying to re-open matters dealt with by the First Decision.

	In our view the only matters identified by Mr Ray as ones which he was prevented by that ruling from pursuing are either irrelevant to any question of contributory default or were indeed matters covered by the First Decision.   Into the first category of irrelevant matter we place the evidence that Mr Payne looked for other jobs while employed by the Company and was thinking of leaving if the promotion he claimed to have been promised was not forthcoming. No default of any sort is involved on the part of an employee if he looks for work elsewhere. Similarly the delay, such as it was, between the acts which amounted to constructive dismissal by the Company and Mr Payne's departure can have no relevance to any contributory default on his part. Such delay could if sufficiently prolonged lead to the failure of his claim to have been constructively dismissed.   But this brings us to the second category of matter covered by the First Decision which clearly includes all questions relating to the issue whether Mr Payne was constructively dismissed. The First Decision, also in our view, conclusively dealt with the issue whether Mr Payne was at fault in writing as he did to Mr Watkins and whether the reaction of his superiors to that act of Mr Payne was reasonable. In our view the Industrial Tribunal was entitled to refuse to have any such question re-opened.

	With the benefit of hindsight it is easy to see that it would have been preferable if the Industrial Tribunal had inquired at the outset whether there was any issue of contributory default on the part of Mr Payne relied upon and given directions accordingly as to the stage at which such matters would be dealt with. On that score we would respectfully adopt what was said in Ferguson v. Gateway Training Centre [1991] I.C.R. 658 at 668, that it might be helpful where there is a split hearing between liability and compensation, if before final submissions are made the chairman was to redefine the issues. Essentially what matters is that the parties should have a proper opportunity of dealing with the issues that arise. But in the context, which exists here, of the issue of contributory default being raised for the first time at the hearing itself of the 18th December 1990 on factual issues which were either dealt with by the First Decision or were irrelevant we can detect no error of law in refusing to allow it to be pursued. Cf. Iggesund Converters Ltd. v. Lewis [1984] I.C.R.544. All relevant factual issues had been fully canvassed at the hearings for the First Decision.

	The second ground of appeal in the Company's notice of appeal was that the Industrial Tribunal in awarding compensation as it did failed to take into account all the evidence and submissions made to it.   This is not a verifiable or proven assertion nor would it be right for this tribunal to assume that an Industrial Tribunal did not take into account the material placed before it.   Various details are given in the particulars provided in the Notice of Appeal elaborating the several grounds of appeal, of points made in the evidence and in argument in favour of the conclusion that Mr Payne failed to mitigate his loss. The Industrial Tribunal did it is true deal in quite a short space with this issue.   It said in paragraph 5 of the Second Decision

"We further find that the applicant had made all reasonable endeavours, having in mind his age . . . . . to find other employment or source of income".

In the following paragraph it said:

"The applicant has provided further evidence as to his substantial endeavours to find other employment in a field similar to that with the respondents".

	It is not the duty of the Industrial Tribunal to record all the suggestions of possible steps by way of mitigation that are put to an employee who has been unfairly dismissed and then give reasons why it accepts that the employee was not under a duty to do what was suggested.   These are questions of judgement for the Tribunal and without in any way suggesting that a somewhat fuller treatment of this issue would not have been proper and indeed appropriate, we are unable to find that an error of law is established.

	One particular point which was raised before us should be specifically addressed.   That is that it was submitted by Mr Ray that he had been improperly prevented from pursuing cross-examination of Mr Payne on the issue whether the latter had paid any or any sufficient regard to job advertisements in the Yorkshire Post. The actual newspapers put to Mr Payne, or sought to be put to him, were it appears left with the Industrial Tribunal but have since become lost.   Mr Ray provided this Tribunal with further issues of the Yorkshire Post. Mr Payne's activities after leaving the Company's employment were first to apply for a job which was offered to him but which he turned down and then to embark on a self employed basis in a greeting card agency from May to October 1990 when he decided that had failed. Thereafter between October 1990 and December 1990 the Company in its notice of appeal claims he applied for only seven jobs ignoring on average 10 suitable positions advertised in the local newspaper weekly. That is a matter which was before the Industrial Tribunal and upon which it had to make its judgement whether Mr Payne had made reasonable attempts to mitigate his loss. The members of the Industrial Tribunal in their statement dealing with the allegation of bias do mention that in their view Mr Payne was in their view cowed by Mr Ray's questioning technique and we accept for the purpose of this decision that Mr Ray's questions based on the advertisements in the Yorkshire Post were cut short.   These are matters for the judgement of the Chairman of the Industrial Tribunal.   There are his notes of evidence which show that there was substantial cross-examination, as it was proper there should be, of Mr Payne on the issue of mitigation, as opposed to contributory default before dismissal. We are quite unable to find that there was any such denial of justice as would entitle us to interfere in a field which is entrusted by Parliament as an issue of fact to the decision of industrial tribunals.

	One particular argument of Mr Ray seems to us wholly misconceived.   This was that there was an error in the Second Decision in that in the second passage quoted above from paragraph 6 of the Second Decision it reads:

"The applicant has  provided further evidence of his substantial endeavours to find other employment" (my italics)

and that there was only one lot of evidence about this and not as the word "further" suggests, two.   Further comment is unnecessary.

	We are unconvinced that there was either a denial of justice in the limitations placed on cross-examination or that there was a perverse decision such as to entitle us to interfere.

	The third ground of appeal was that the Industrial Tribunal, it was said, did not give its decisions in sufficient detail.   We accept that it would have been preferable if the Industrial Tribunal had given figures to show how it got to the statutory maximum without taking into account future loss of earnings after the date of hearing.   What the Industrial Tribunal did do was make findings as to the lack of compensatory income from Mr Payne's self employed activities to set off against any award and it made findings as to his pay and the value of other benefits received by him while employed by the Company and it then stated quite generally that it found that Mr Payne was entitled to a total of compensation limited by statute.   In our view it would have been preferable for it to set out how that conclusion was reached but that is not the question before us which is whether there is shown to be a error of law such that an appeal should be allowed.   That we are unable to do.   The notes of evidence show that there was material before the Industrial Tribunal upon the basis of which it would have been possible to reach the conclusion that was reached and in those circumstances we do not consider that we have jurisdiction to interfere.

	We should mention one specific complaint raised under this head by Mr Ray which in itself seems to us justified but which is irrelevant to the question before us whether an error of law is shown in the assessment of Mr Payne's compensation. The complaint is that in no less than three places in the Second Decision the Industrial Tribunal expressed its regret and made adverse comment upon the substantial delay and failure to settle the matter between the 28th August 1990 when the First Decision was sent to the parties and the 18th December of that year when the hearing which led to the Second Decision was held.   Mr Ray submitted that the great bulk of that period was taken up with efforts to obtain further and better particulars of Mr Payne's activities by way of mitigation of loss. In this it seems to us he was right because the particulars were only given over a month after they were ordered and only three weeks before the hearing of the 18th December 1990. But although Mr Ray's and his clients' irritation at being criticised at all, let alone three times, for a matter that does not appear to be justified, is understandable, it does not impinge on the issue before us which relates to the compensation awarded to Mr Payne.  It is not therefore a ground upon which the appeal can succeed. We do not accept that there is any basis upon which we could conclude that the quantum of the award was affected by a desire on the Industrial Tribunal's part to punish the Company either for the delay that was subject of complaint or for any other matter.

	The fourth and last ground of appeal was bias on the part of the Industrial Tribunal. There was a very substantial discrepancy between the accounts of what happened before the Industrial Tribunal on the 18th December 1990 given by Mrs Faulkner and the industrial members.   However Mr Ray told us that he was not proposing to use Mrs Faulkner's affidavit so we do not need to deal further with that beyond suggesting that when such an unfortunate state of affairs arises it would be helpful to this Tribunal if the Affidavit relied upon by an appellant alleging bias was submitted to the Respondents to the appeal for them to have an opportunity if so advised to file evidence by way of Affidavit as to the disputed events.

	What Mr Ray relied upon to indicate bias were matters which we have already dealt with, the failure of the Chairman to include in the Second Decision the promised reasons for excluding evidence by way of cross-examination by Mr Payne of compensatory default and the unjustifiable criticisms of delay.   Those matters fall very far short of constituting evidence of bias sufficient to justify setting aside a decision of the Industrial Tribunal.

	We therefore dismiss this appeal.