Appeal No.	EAT/1055/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 December 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY
MR J R CROSBY
MR W MORRIS

RAINWORTH MANOR NURSING HOME	APPELLANTS

MR S KINGSWOOD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR PORTER
(of Counsel)
Instructed By:
Mr R Beverley
Messrs Freeth Cartwright Hunt Dickins
Solicitors
Willoughby House
20 Low Pavement
Nottingham NG1 7EA	

	MR JUSTICE LINDSAY (PRESIDENT):	We have before us, by way of a Preliminary Hearing, the appeal of Dr Sudaram Rai in the matter Kingswood against Rai.  Dr B S Rai trades as Rainworth Manor Nursing Home.

1	On 22 October 1998 Mr Kingswood lodged an IT1 complaining that he had suffered an unfair dismissal on account of Trade Union activities.  The Respondent’s IT3, by contrast, asserted that he had been dismissed for serious deficiencies warranting summary dismissal.  That led, as one would expect, to a Liabilities Hearing.  It was spread over five days between March and April 1999 and, on 4 May 1999, the unanimous decision was sent to the parties and it was:

“1.  The Respondents dismissed the Applicant for a reason related to union activities within the meaning of Section 152 Trade Union and Labour Relations (Consolidation) Act 1992.
2.  The dismissal is therefore to be regarded as unfair.
3.  The Tribunal will consider what remedy should be granted to the Applicant on 17 May 1999.”

2	Amongst the findings of the Tribunal at that Liabilities Hearing was that when Dr Rai had dismissed Mr Kingswood, he had taken care to write letters to seven addressees.  Thus at paragraph 33 one finds:

“33.  This circulation had the potential of having an adverse effect on the Applicant’s career.  It was written before any opportunity to appeal against the decision being given and without hearing the Applicant’s version of events.  We considered the motivation of Dr Rai in taking this unnecessary step.  Dr Rai inadequately explained this circulation as being for the protection of the Home and other Homes who might employ the Applicant.”

A little later:

“We were forced to the conclusion that circulating the letter as Dr Rai did was motivated by vindictiveness.”

A little later, on our page 22, at paragraph 45 it says:

“45.  The Respondents had attempted to bolster their allegations and to slur the Applicant’s character with the registration authorities and others.  On the balance of probabilities it was apparent that the dismissal was for reason of the Applicant’s trade union activities.”

In paragraph 49 they said:

“49.  We have come to the conclusion that the Respondents dismissed the Applicant for the reason of his trade union activities.  We found the reason given by the Respondents as to why they had dismissed the Applicant to be unconvincing.”

In paragraph 60 it was said:

“60.  The Applicant impressed us as an honest individual who knew his job and the procedures required within a nursing home.  When giving his evidence he did not hesitate and was consistent in the accounts which he gave.”

In paragraph 61 they dealt with, by way of summary, one of the events, perhaps the chief of them, that was said to have led to Mr Kingswood’s dismissal:

“61.  We are of the view that the resident disappearing from the nursing home was a convenient event which the Respondents seized upon to seek to justify the Applicant’s dismissal.  The Applicant was raising serious concerns as referred to above and encouraging union membership by staff.  In the view of the Tribunal, he had become a nuisance which the Respondents were not prepared to tolerate.”

In paragraph 50 it was held:

“50.  There had been other occasions when employees had been responsible for residents leaving the nursing home but they had not been disciplined for this.  The residents leaving the nursing home was always a possibility when there was no policy or ability to lock the front door and operate the alarm.”

3	There has been no timely Notice of Appeal against the Liability Decision and we must take the facts there found to be the case.  Then, as had been indicated, there was a Remedies Hearing fixed and it occurred on 17 May.  The decision was sent to the parties on 29 June.  The decision was unanimous and it was:

“The unanimous decision of the Tribunal is that the respondent do pay to the applicant the sum of £39,871.80.”

Paragraphs 1 and 2 of the Extended Reasons say this:

“1.  The unanimous decision of the Employment Tribunal sent to the parties on 4 May 1999 was that the respondents had dismissed the applicant for a reason related to his trade union activities.  The tribunal had on 10 December 1998 made an order under Section 163 Trade Union and Labour Relations (Consolidation) Act 1992 (‘The 1992 Act’) namely that the applicant’s contract of employment should continue from that day.  By virtue of Section 164 (1) of the 1992 Act for the purposes of pay, continuity of employment and other matters the contract of employment continues in force until ‘the determination or settlement of the complaint’.
2.  We conclude that the applicant’s complaint was not determined until the decision of the tribunal as to remedies which was made on 17 May 1999.  We were referred to no decided authorities as to when the complaint is ‘determined’.  To treat it as determined on any other date would lead to anomalies and in any event in a case such as this when a compensatory award is made in favour of the applicant without deduction the practical effect on the amount of the award is unaffected, no matter when the complaint is held to have been determined.”

4	That is the point that gives rise to the first Notice of Appeal ground, because that says (and Mr Porter has advanced it on behalf of Dr Rai today) that the Employment Tribunal erred in law in determining that the Applicant’s complaint was not “determined” until the decision as to remedies, which was made on 17 May, thereby extending an Order under Section 163 of the 1992 Act until that date, so that under Section 164 (1) of that Act, the employment of the Respondent continued for the purpose of calculating compensation until 17 May 1999.

5	The interim Order had been made on 11 December 1998; we find that at our page 27 and it says:

“DECISION ON APPLICATION FOR INTERIM RELIEF
Under section 164 of the Trade Union & Labour Relations (Consolidation) Act 1992, I order that the applicant’s contract of employment shall continue in force for the purposes of pay, seniority, pension rights and other similar matters, and for the purpose of determining for any purpose the period for which the employee has been continuously employed, from 20 October 1998 until the determination or settlement of the applicant’s complaint of unfair dismissal. …”

6	There is no appeal against that decision which was at a hearing on 11 December 1998 and was sent to the parties on a date which does not appear (at any rate in my copy).  It is necessary to turn to the statutory provision.  Section 163 (1) provides:

“(1)  If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply.”

And then Section 163 (6) says:

“(6)  If on the hearing of an application for interim relief the employer fails to attend before the tribunal, or states that he is unwilling either to reinstate the employee or re-engage him as mentioned in subsection (2), the tribunal shall make an order for the continuation of the employee’s contract of employment.”

7	It had been held here that reinstatement was not practicable.  That appears at our page 29, as part of the decision of 11 December 1998.  In paragraphs 6 and 7 it there says:

“6.  … Both parties accepted that reinstatement was not realistic.  The respondent offered to re-engage the applicant in one of their other homes.  Although initially the applicant indicated that he would agree with that, after further consideration he gave me reasons why he did not feel able to.  These related to the fact that the respondent had challenged his competence as a nurse and had made allegations of criminal activity against him.  He was concerned that, if he were to go back into the respondent’s employment, he would be vulnerable to other allegations relating to his competence, which could be referred to the UKCC, which could damage his whole future as a nurse.
7	I accept that the refusal to return to work for the respondent is reasonable.  Indeed, in view of the allegations of criminal activity made by the respondent against the applicant, it is difficult to see how the respondent could contemplate taking the applicant back, even in a different home, if the allegations have any substance in them.  The allegations go to the root of any contract of employment and it is difficult to see how any employee could work for an employer who maintains such a claim.  I also accept the vulnerability of the applicant in terms of his nursing registration.  I accept that his refusal to be re-engaged is reasonable.”

8	In that circumstance it was therefore appropriate to make an Order under Section 163 (6).  That leads on to Section 164 (1) and that provides:

“(1)  An order under section 163 for the continuation of a contract of employment is an order that the contract of employment continue in force … .”

And then it has, “for the purposes of pay” etc., in subparagraph (a) and “for the purpose of determining continuous employment” in subparagraph (b) and then it goes back to the main text:

“from the date of its termination (whether before or after the making of the order) until the determination or settlement of the complaint.”

What is a “complaint”?  That relates back to Section 161 (1):

“(1)  An employee who presents a complaint of unfair dismissal alleging that the dismissal is unfair by virtue of section 152 may apply to the tribunal for interim relief.”

One also has to look to Section 167 (2) which says:

“(2)  Those sections shall be construed as one with that Part; and in those sections –
‘complaint of unfair dismissal’ means a complaint under section 111 of the Employment Rights Act 1996.”

9	So we now have to turn therefore to Section 111 (1) of the Employment Rights Act 1996 and that says:

“(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.”

And Section 112 (1) to (4) says:

“(1)  This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of complaint are well-founded.
(2)  The tribunal shall –
(a)	explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and 
(b)	ask him whether he wishes the tribunal to make such an order.
(3)  If the complainant expresses such a wish, the tribunal may make an order under section 113.
(4)  If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal …”

And then it provides for the calculation of that and then it goes on:

“to be paid by the employer to the employee.”

10	So it is quite plain that, within a “complaint” of unfair dismissal, there is to be embraced the possibility of an award for compensation for unfair dismissal.  It is almost so obvious that it goes without saying.  Thus, when in Section 164, one has the expression “the determination or settlement of the complaint” that, as it seems to us, describes a time when the whole complaint has been determined in the sense of ended, which includes, therefore, ended also as to the question of remedies and, in this particular case, the issue of compensation.  We do not see anything in Section 164 that suggests otherwise.  Section 163 (1) says:

“If on hearing an application for interim relief it appears to the tribunal that it is likely that on determining the complaint to which the application relates that it will find that, by virtue of section 152, the complainant has been unfairly dismissed, the following provisions apply.”

11	But one cannot jump from that to taking it that the complaint is determined merely upon the holding of whether or not the dismissal has been unfair.  If a complaint was determined, in the sense of ended, at the stage when it was ruled that the dismissal was fair or unfair, then there would be no possibility of the complaint going on to include the issue of remedies.  This is a difficulty which we put to Mr Porter and to which there seems to be no answer.

12	We have been referred by Mr Porter to the case of Oaten v Auty [1919] 2 KB 278, which may assist on the meaning of “determination” in the particular context there concerned - the Military Services Acts 1916 and 1918 - but we have not found it to give us any assistance on the immediate problem that we have.  The Tribunal in our case took the position to be that a complaint was only determined (where there was a finding of unfair dismissal) when the remedies hearing had also been determined.  That seems to us entirely right and we therefore see no error of law in this first ground of appeal.

13	The second ground of appeal concerns reduction on just and equitable grounds where it is thought that the complainant has contributed to his own dismissal.  The ground is explained in paragraph 6.2 of the Notices of Appeal, which says:

“6.2  That the Employment Tribunal erred in law and in the application of the relevant Statutes in finding that it was not just and equitable to reduce any award, either by reason of the Applicant’s conduct or for any other reasons within Section 122 and Section 123 (6) of the Employment Rights Act 1996 nor under Section 158 of the Trade Union and Labour Relations (Consolidation) Act 1992.”

14	We shall not read out Section 122 and Section 123 (6) and Section 158 as to reductions of awards where the Tribunal decides that, having regard to the complainant’s conduct, it is just and equitable to reduce the award.  We will take those as read for immediate purposes, but we should say this; even amongst other fact-related topics, the broad discretion on just and equitable principles given to the Tribunal is very much a matter for the Tribunal itself, which has heard the whole of the case, seen all the witnesses and heard all the witnesses.

15	Given the findings that we have cited, that, in effect, it was not altogether unknown for residents to find a way out, from time to time, from the nursing home but that it was not usually a case even for disciplining staff, let alone for dismissing them, and that in Mr Kingswood’s case the escape (to so-call it) of one elderly gentleman had been seized upon to appear to justify a dismissal which was truly for Trade Union reasons, it is hard to see how any tribunal could have decided that Mr Kingswood had contributed to his own dismissal to any material degree.  We would not be inclined to see any error of law here, even before coming to another difficulty, which is apparent from paragraph 3 of the decision in which the Tribunal say this:

“3.  We make the following awards having determined that there was no conduct on the part of the applicant justifying any reduction in the award in his favour.  We find that it is not just and equitable to reduce the award for any other reason within section 122 and section 123 (6) of the 1996 Act nor under Section 158 of the 1992 Act.  No submissions were made on behalf of the respondent that we should reduce the compensation for any of these reasons.”

16	The difficulty therefore is that the points when now made were not even advanced below.  Mr Porter has drawn our attention to Nairne v Highland & Islands Fire Brigade [1989] IRLR 366, where there was a reduction and in paragraph 9 the Appeal Tribunal there said:

“9.  In the present case we are satisfied that the Tribunal did err in law in failing to explain its reasons for assessing the degree of contribution by the appellant at 25%.  No explanation or reason of any kind was stated by the Tribunal for its assessment of the appellant’s contribution at 25% … .”

17	One can see that where a particular percentage reduction is decided upon it needs to be explained, but it does not follow from that that when there is no reduction it has to be explained why there is no reduction, nor, even more so, is explanation required when no point had been taken below of the character that is now sought to be advanced.

18	We have also been referred to Langston v Cranfield University [1998] IRLR 178 where there is, at paragraph 21, a passage that indicates that there are some areas of the law where it is so common for particular considerations to have to be borne in mind that they ought to be borne in mind even if the points are not specifically raised at the hearing.  We can see that it is right for the Tribunal to turn its mind to the justice and equity of any reduction, even though no submissions seem to have been made on the point.  But that, of course, is exactly what they here did and what paragraph 3 shows that they did.  It does not follow from Langston or any other case that a party who has made no submissions on a subject can later turn round and appeal on the grounds that some other conclusion should have been come to on that subject.  Indeed, this argument, as Mr Porter acknowledges, drives him into an argument that here, having regard to the earlier findings, the later conclusion that it was not just and equitable to make any reduction was perverse.  The difficulties of that are well known in this part of the law and we do not feel able to say that the decision here was at all perverse in so far as concerns the justice and equity of there being no reduction.  We see nothing, in other words, on this second ground.

19	The third ground of appeal, Mr Porter has told us, is not pursued.  The fourth ground, which we had thought was going to be dropped, has not formally been dropped but Mr Porter described it as only “lightly run” and that is that the Employment Tribunal erred in law in failing to consider whether proper steps had been taken by the Respondent to find suitable alternative employment following his dismissal.

20	On that the Tribunal held, at paragraph 10:

“10.  So far as future loss is concerned we consider that the applicant, having made fifty or so written attempts to obtain employment, had taken such steps as in the view of the tribunal was reasonable to mitigate his losses. …”

21	They continued to consider possibilities of alternative employment.  They made specific findings about what salary Mr Kingswood could eventually expect to receive.  We see no error of law in this part of the case.

22	As we understand it, we have now dealt with all the arguments which Mr Porter has raised and, indeed, even those on which he has indicated he presses only lightly.  We find no error of law in the determination at the remedies hearing and accordingly, we must dismiss the appeal even at this preliminary stage.