Appeal No.	 EAT/383/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 October 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MR T C THOMAS CBE
MR N D WILLIS

MR F CHAPMAN	APPELLANT

SURREY HEATH BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR M MULLINS
(of Counsel)
Messrs Lee & Co.
Solicitors
2 Princess Way
Camberley
Surrey GU15 3SP	
For the Respondent	MR P EDWARDS
(of Counsel)
Legal Services
Surrey Heath Borough Council
Surrey Heath House
Knoll Road
Camberley
Surrey GU15 3HD	

	JUDGE JOHN BYRT QC:		This is an appeal against the decision promulgated on 31 January of last year of an Employment Tribunal sitting at London South, whereby it held that the employee, Mr Chapman, had been unfairly dismissed.  In addition, they found he had been guilty of 50% contributory conduct towards his own loss.  Mr Chapman appeals against the computation of the compensation they awarded him.

	The facts of the case can be quite simply told. Mr Chapman had been employed by the Respondents for something like four years as a car park patrol officer, and as such he was responsible, together with a team of four other officers, for patrolling the car park sites belonging to the Respondents.  I think there was one multi-storey car park and four surface car parking areas.  It was a requirement of the job that each of those officers should be able to drive a vehicle.  This gave them the flexibility to go between one site and another.  Unhappily what happened was that on 20 November 1995, Mr Chapman was convicted of a drink-driving offence and attracted a ban on driving of one year.  He informed the Respondents who immediately suspended him.  They called him for a disciplinary hearing on 24 November and thereafter dismissed him.  He went through the usual appeal processes which upheld the original decision.  On the 16 January 1996, his final internal appeal was dismissed.

	The Employment Tribunal considered a number of points on its way to determining that the dismissal had been unfair.  In view of the fact that there is no appeal against that determination, it is unnecessary that I follow through that train of events.  Suffice it to say that when it came to considering compensation, they awarded him a sum of money equal to his loss of wages between the date of his dismissal and the 9 February 1996, a period of some eight weeks.   It is that part of the decision which Mr Chapman appeals.

	The relevance of the date, the 9 February, is that that is the date Mr Chapman obtained alternative employment with a company called Barklands Cleaning Company.  It would seem the Employment Tribunal regarded that event as breaking the chain of causation in such a way as to exculpate the employers from any further liability for losses he might have suffered thereafter.

	In evidence before the Tribunal, Mr Chapman who was unrepresented throughout the hearing, said that his job with Barklands cleaning company was “permanent”.  The question arises whether that evidence should have prompted further enquiry.  There are those sitting with me today who have extensive experience in the industry, and they query how permanent is any employment in the cleaning industry.  Furthermore, it is uncertain how qualified Mr Chapman was to give a view as to whether his employment was to be regarded as permanent.  What we have to do at this stage is to look to see what happened.

	In April, Barklands Cleaning Company, was taken over under a TUPE transfer by TC Cleaning, and on 25 July Mr Chapman’s employment with TC Cleaning came to an end, and it is relevant to ask why that was.  Here there was a conflict in the evidence given before the Employment Tribunal.  Mr Grimmer gave evidence.  He was the Respondents’ senior personnel officer.  His evidence was admitted before the Tribunal to say that he had had a telephone conversation with a Mr Trevarus, who was the accountant employed by TC Cleaning. Mr Trevarus had indicated to him that Mr Chapman had not been dismissed and that the Company was willing to take him back any time Mr Chapman wished to resume his employment.

	Mr Chapman on the other hand says, no; he was dismissed, simply because it was thought he was not good enough at his job.  The Employment Tribunal heard that evidence but made no findings as to whose evidence they preferred.  They made no findings as to how Mr Chapman’s employment ended.  One surmises that perhaps they thought it was irrelevant having regard to the fact that they regarded the relevant shut-off point as being 9 February. 

	In our view, the Tribunal fell into error at this point, in attaching the importance they did to Mr Chapman’s evidence that his employment, begun on 9 February, was “permanent”.  It is our view that permanency is not the sole test as to the Respondents’ liability for losses Mr Chapman might have sustained thereafter.

	Section 123 of the Employment Rights Act says that, “the Tribunal should award such amount as it considers to be just and equitable in all the circumstances”.  It is to be noted that the distinction as to whether the employment was permanent or temporary, is not one referred to in the Act.  It is not mentioned as a relevant yard stick.  This was the view expressed in a number of decisions considered in the case of Anita Carole Dench v Flynn & Partners, a decision of the Court of Appeal in which judgment was delivered on 9 June 1998.  We were not shown a copy of this decision.  All we have seen is a head note setting out the relevant facts in a publication called Lawtel together with a statement of what was held by the Court of Appeal.  The copy we have, says as follows:

“(1) The provisions of the Employment Rights Act 1996 provided that the tribunal should award an amount that is just and equitable in consequence of unfair dismissal.  (2) In Courtaulds Northern Spinning Ltd v Moosa [1984] and in Ging v Ellward Lancs Ltd [1991] ICR 222 it was held that an IT had been wrong to have distinguished between permanent and temporary employment after unfair dismissal.  What was important was causation.”

	This decision directs the attention of the Tribunal to the wording of the section.  What is just and equitable required one to look beyond the 9 February in order to ascertain whether Mr Chapman suffered any loss thereafter and if so, whether the Respondents’ dismissal was causative of any part of that loss.  As the case of Dench says “causation is the crucial test”.

	In this way, the history of what happened between 9 February and 25 July becomes relevant, especially the circumstances in which his employment terminated on 25 July.  If the Tribunal were to find that on that date, Mr Chapman simply walked out on his job, then clearly there would at that point have been a break in the chain of causation and no blame could be attached to the Respondents for any financial losses he suffered thereafter in consequence.  If, on the other hand, the Tribunal were to accept Mr Chapman’s evidence that he was dismissed on that date for incapacity, then the question does arise whether the Respondents might be responsible for the losses in wages he suffered after that dismissal.  The answer would be dependent on whether the Tribunal were to find that his loss of his job for incapacity was so predictable, having regard to his age, personality, and skills, that it could firstly be said to be a consequence in the causative sense of the loss of his job in the previous November.

	The problem in this case on appeal is that the Employment Tribunal made none of the relevant findings relating to the events of the 25 July and therefore never considered whether Mr Chapman’s losses incurred following the loss of his job could in justice and equity be attributable to the Respondents.

	Accordingly, we think that this appeal must be allowed.  This case should be remitted to the Employment Tribunal with a view to their reconsidering the question of compensation.  This will entail findings being made as we have set out above in this judgment.  We would stress however, that there has been no appeal in this matter by Mr Chapman against the Tribunal’s apportionment of contributory conduct.  Mr Mullins at the outset of his address indicated that he was not seeking to disturb the 50% apportionment found by the original Employment Tribunal.

	Mr Mullins, Mr Edwards: have either of you any submissions to make whether we remit it to the same Tribunal or a differently constituted Tribunal?

	We think we ought to remit the case to the same Tribunal.  They are fully apprised of the facts of the case, but they would have been unaware of the case of Dench as it had not been decided when the Tribunal gave their decision.  They are the natural and, in our view, the appropriate forum to consider a review of the compensation award.