Appeal No. EAT/70/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8th March 1995

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MR J H GALBRAITH CB

	MR R JACKSON

VALERIE IRELAND 	APPELLANT
(AS PERSONAL REPRESENTATIVE OF COLIN IRELAND DECEASED)

NORTHERN COURIER SERVICES LTD	RESPONDENTS
(T/A DOCUMENT INTERLINK)

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR S JONES
(of Counsel)
Allan Henderson Beecham and Peacock
7 Collingwood Street
Newcastle-upon-Tyne
NE1 1JC

For the Respondents	MR D BRABBINS
(Personnel Consultant)
Peninsular Business 
    Services Ltd
Stamford House
361/365 Chapel Street
Manchester M3 5JY

	JUDGE LEVY QC:	In this judgment we will refer to the Employment Protection (Consolidation) 1978 as "the 1978 Act", and to the Trade Union and Labour Relations (Consolidation) Act 1992 as "the 1992 Act". 

	This appeal raises a short and arcane point not previously covered by authority on facts which are not in dispute. The point is in what circumstances can the estate of a deceased dismissed employee benefit from the provisions of Sections 157 and 158 of the 1992 Act. Section 157 enables an employee found to be unfairly dismissed by his employer on grounds related to union membership or activities, who is not reinstated or re-engaged, to obtain a special award of compensation, to be calculated in accordance with the provisions of Section 158. Section 158 (1) sets out the manner in which the question of the basic award should be calculated. Later sub-sections set out circumstances in which it can be reassessed or enhanced. 

	The Industrial Tribunal held that the Appellant, as a personal representative of a former employee, was not entitled to receive any special award and from that decision she appeals. We are greatly indebted to Mr Jones, Counsel for the Appellant, who has taken us through the relevant law, including the transitional provisions and the law as it existed before the 1992 Act came into force.

	The facts can be fairly shortly stated. 

	Colin Ireland ("Mr Ireland") commenced employment with Northern Courier Services (trading as Document Interlink) ("the Employer") on 12th November 1991. His employment was terminated on 2nd June 1992 because the Employer alleged that Mr Ireland was the instigator in an attempt to start a union in non-union premises. The effect of Section 154 of the 1992 Act is to enable the complainant to start proceedings in an industrial tribunal if the principle grounds for his dismissal is a ground related to union membership or activities. It is common ground that this was the case here. An IT (1) was issued by Mr Ireland on 12th June 1992. Box 11 of his complaint reads:

		" 11 ... Unfair dismissal claimants only (Please tick a box to show what you would want if you win your case)."

Then there is a box with:

		"Reinstatement: to carry on working in your old job as before"

It is common ground that the cross placed in that box should be interpreted as a tick.

	The IT3 of the Employer said that Mr Ireland was dismissed for conduct. It was received on 16th July 1992.

	Shortly prior to the hearing Mr Ireland was offered and refused reinstatement. By then it appears that his health was failing. A hearing took place before the Industrial Tribunal at Newcastle on 31st March 1993. The decision was communicated to the parties at the end of the hearing. The Tribunal held Mr Ireland's dismissal was unfair. The decision was formally sent to the parties on 29th April 1993. Paragraph 5 of the Full Reasons reads as follows:

		"5.   The Chairman having announced the Tribunal's decision to the parties, indicated the hearing would be adjourned sine die with liberty either party to apply for the hearing to be restored to consider the question of remedies on application made within 21 days of the promulgation of the Tribunal's award."

On 18th May 1993, shortly after the Full Reasons had been communicated, Mr Ireland unfortunately died. Valerie Ireland was thereafter substituted as the applicant.

	The Remedy hearing was held on 20th October and 23 November 1993 and the Decision promulgated on 2nd December 1993. The Industrial Tribunal made basic and compensatory awards about which there is no appeal. It declined to make a special award saying in paragraph 2 of the Full Reasons:

		"2.     At the remedies hearing a great deal of evidence was given on both sides as to the question of the applicant's refusal of the respondent's offer of reinstatement made prior to the original hearing and as to whether such refusal was or was not justified. This evidence was particularly relevant to the question of the applicant's entitlement to a special award under section 75A of the Act. In the event during the closing submissions made on behalf of the respondent the Chairman drew the attention of the representatives of both parties to paragraph 10 of Schedule 12 of the Act which reads -"

			"When an employee has died, then unless an order for reinstatement or re-engagement has already been made, section 69 shall not apply; and accordingly if the industrial tribunal finds that the ground of the complaint are well-founded, the case should be treated as falling within section 68(2) as a case in which no order is made under section 69."

		"Mr Lamb the applicant's solicitor suggested that notwithstanding paragraph 10 of Schedule 12 the reference in section 68(2) to "an award of compensation for unfair dismissal, calculated in accordance with section 72 to 76" preserved the applicant's rights to a special award. The Tribunal were unable to accept this argument bearing in mind the clear wording of paragraph 10 of Schedule 12 of the Act and fact-that section 72(c) of the Act makes it clear that a request under section 69 is a prerequisite of an entitlement to a special award. On this basis the Tribunal were unanimous in their view that the application for a special award should be dismissed."

It is from these findings that Mrs Ireland appeals.

	Mr Jones has helpfully provided us with two flow charts showing the steps which have to be followed before an applicant can receive a special award.

	One shows the necessary steps (giving the nomenclature of sections before the 1992 Act was introduced) under what Mr Jones called "the old regime".

	The other shows the route under the present legislation. As the 1992 Act was a consolidating act, the routes are the same but the Tribunal followed the "old regime" in its judgement. Some different words are used in the various sub-sections of the present legislation to those used in the equivalent sections of the "old regime". We will return to the route followed by the Tribunal following the "old regime" after we have followed Mr Jones's route under the "new regime".

	The starting point of under the "new regime" is found in the Schedule 12 of paragraph 10 of the 1978 Act. That reads:

		"10.   Where an employee has died, then, unless an order for reinstatement or re-engagement has already been made, section 69 shall not apply; and accordingly if the industrial tribunal finds that the grounds of the complaint are well-founded the case shall be treated as falling within section 68(2) as a case in which no order is made under section 69."

That paragraph therefore leads us to Sections 69 and 68 of the 1978 Act.

	Section 69 of the 1978 Act is about an order for reinstatement or re-engagement which is clearly not one which will be made after an original applicant has died. Thus it is quite clear why parliament has said that Section 69 should not apply after an applicant's death.

	Section 68(2) reads as follows:

		"(2)   If on a complaint under section 67 [a complaint is a reference to item (1) in section 67] the tribunal finds that the grounds of the complaint are well-founded and no order is made under section 69, the tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with [sections 72 to 76], to be paid by the employer to the employee."

	The section to which we now have to turn is section 152(1) of the 1992 Act. That is a section headed:

		"152 Dismissal on grounds related to union membership or activities" .

- this is an activity for which Mr Ireland was dismissed, as in now accepted by the Respondents.

	That makes us return to Section 72 of the 1978 Act which deals with compensation for dismissal, but that leads us in turn to Sections 157 and 158 of 1992 Act, because Section 72(2)(b) reads:

		"2 Where the reason ... for dismissal, was an inadmissible reason, then, unless - 
		(b) the case falls within section 73(2),
		the award shall include a special award calculated in accordance with section 75A."

The equivalent sections are section 157 and 158. The appropriate extract from Section 157 reads:

		"(1)   Where an industrial tribunal makes an award of compensation for unfair dismissal in a case where the dismissal in unfair by virtue of section 152(1) or 153 then, unless- 

			 (a)	the complaint does not request the tribunal to make an order for reinstatement or re-engagement, ...

		the award shall include a special award calculated in accordance with section 158."

It is quite clear here that the words "the complaint" refers to the IT1. As we have already said, the "complainant" sought reinstatement in the appropriate box. It therefore appears to us that the Industrial Tribunal should have gone on to make an award calculated in accordance with the provisions section 158 and accordingly we think that this appeal must succeed.

	We turn to follow the route of the "old regime" which the Industrial Tribunal sought to follow.

	The starting point again was Schedule 12 paragraph 10 and Section 68(2) of the 1978 Act. It was then necessary to consider Section 72 of 1978 Act, in the wording current when the hearing before the Industrial Tribunal determined the question.  Section 68(2) is set out above but Section 72 then reads:

		"Where a tribunal makes an award of compensation for unfair dismissal under section 68(2) or 71(2)(a) the award shall consist of -

			(a)	a basic award calculated in accordance with section 73, and 
			(b)	a compensatory award calculated in accordance with section 74.) and
			(c)	where the dismissal is to be regarded as unfair by virtue of section 58 or 59(a) a special award (calculated in accordance with section 75A);
		but paragraph (c) shall not apply unless the complainant requested the tribunal to make an order under section 69, and shall not in any event apply in a case within section 73(2)."

	It is important to note that among the words used are; "unless the complainant requested", rather than the clearer words which are set out under the 1992 Act. There was some debate in the Industrial Tribunal and here as to whether the words "the complainant requested" are the same as the same as on "a complaint". As the 1992 Act is a consolidating Act, it is clear that the law has not been changed by the tidying up, and that is how the words should have always been construed, although the Tribunal below appear to have thought otherwise. Mr Brabbins unsuccessfully so tried to persuade us. 

	There are other significant changes between the pre-1992 wordings of the 1978 Act and under the new provisions, but at the end of the day, with respect to the decision below, we conclude that even before the 1992 Act came into force the words "unless the complainant requested" meant unless a request was made by an applicant in his complaint, i.e. in the IT(1).

	Paragraph 11 of the Tribunal's reasons reads:

		"The Tribunal were unable to accept this argument bearing in mind the clear working of paragraph 10 of Schedule 12 of the Act [the wording is clear but not in the direction, we think, that the Tribunal suggested] and the fact-that section 72(c) of the Act makes it clear that a request under section 69 is a prerequisite of an entitlement to a special award."

In so far as the Tribunal was suggesting that there had been no request under Section 69 with respect we think they were wrong. The request which was made was a request in the original complaint by the Mr Ireland in his IT (1).

	We have been referred to three cases which are on the periphery of the appeal before us, namely to Pirelli General Cable Works Limited - v - Murray [1979] IRLR 190,to Unilech Ltd - v - John Smyth (Unreported) (decided by a Scottish Industrial Tribunal on 8th November 1979) and to a case which only recently come into the reports Cowley - v - Manson Timber Respondents Ltd [1995] IRLR 153; none of them really comes within the narrow compass of law upon which this appeal turns. They do, however, show that the Industrial Tribunal and the Employment Appeal Tribunal should be slow to fail make an order such as that which we think right to make in the present circumstances simply because of the difficulty in construing an Act of Parliament.

	In the circumstances we conclude that the Appellant as Personal Representative of Mr Ireland is entitled to receive award under Section 158(1) of the 1992 Act (Section 75A of the 1978 Act). Consequently we allow this appeal.

	That part of the Industrial Tribunals Appeal which was under review was the refusal to make a special award. Whilst we were considering our decision, the parties were asked to see if they could agree what the award should be in the event that the Appeal went in the Appellant's favour. They have been unable to agree a figure but they have agreed a formula. We are happy to incorporate that formula in allowing this Appeal. We order that there shall be substituted for the refusal to make an award of special compensation an order that the Appellant is entitled to an award made under Section 158(1) of the 1992 Act of 104 times one week's pay of Mr Ireland. And that there should be liberty to either side to apply to the Industrial Tribunal on 48 hours notice to the other side for a further hearing in the event that there is an inability to agree the quantum of one week's pay.

	We would like to end this decision by thanking both representatives for their assistance.