Appeal No.	 EAT/128/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 April 1999

Before
THE HONOURABLE MR JUSTICE LINDSAY
MS D WARWICK
MISS D WHITTINGHAM

MR J ROBERTS	APPELLANT

LONDON GENERAL TRANSPORT SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D IBEKWE
(Representative)
Public Transport (Staff) Consortium
31 b Mervan Road
Brixton
London SW2 1DP	

MR JUSTICE LINDSAY:     We have before us by way of a preliminary appeal the appeal of Mr J.O. Roberts in the matter Mr Roberts against the London General Transport Services Ltd.  Mr Roberts was a bus driver for that company.  

	The procedural position needs a little explaining before we go further.  There have been two relevant decisions of the Employment Tribunal, one promulgated on 29 September 1998 - what one might call “the liability hearing” - and at that Mr Roberts was successful in part in that he was held to have been unfairly dismissed.  

	Then there was what one might call “the remedy hearing” on 19 November 1998.  There is only one Notice of Appeal and that is dated 1 December 1998 and it appeared to be directed to both decisions.  However, the Notice of Appeal, once it had been received, led the Registrar at the Employment Appeal Tribunal to point out that the appeal as to the decision of 29 September was out of time and the Appellant was invited to apply for an extension of time.  

	However, the Appellant elected to proceed only with the appeal against the decision of 19 November on the basis that the appeal against the earlier decision had been an error.  Having learned that from the Appellant’s advisers, the Employment Appeal Tribunal made an order on 15 December 1998 whereby the appeal against the earlier decision, that of September, was withdrawn and dismissed. 

	So the position is that the only appeal before us is against the decision of 19 November 1998, - the remedies decision - and it follows that we must take the liability decision as settled and incontrovertible.

	The remedy decision, which is the one under appeal, was a decision of the Chairman and two Members at London (South) after a hearing of 5 November 1998, as promulgated on 19 November 1998.  It was unanimous and it said this:

“The unanimous decision of the Tribunal is that:
(i)     it shall make no order of reinstatement or re-engagement;
(ii)    it awards to the Applicant, payable by the Respondent a basic award amounting to £630 and a compensatory award amounting to £340, making a total of £970;
(iii)   it refuses each party’s application for costs.”

	I think it is fair to say that neither the Notice of Appeal nor the Skeleton Argument is a work which manifests a professional lawyer’s hand and I think Mr Ibekwe, who has addressed us on behalf of Mr Roberts, the Appellant, and who also appeared below, would be the first to confess that.

	It is quite clear that the Employment Tribunal’s decision as to costs is not in issue and so therefore there can only be two broad topics left for appeal, the first of which is the conclusion as to reinstatement and re-engagement.  As to that Mr Ibekwe felt some difficulty, but he did advance arguments on that subject.  Secondly, there is the quantification of the award at £970 and, in particular, Mr Ibekwe has argued that it was wrong for the Tribunal to have taken into account the likelihood, as they found it to be (in fact they described it as an extremely high likelihood) that Mr Roberts would, in any event, have been duly dismissed after an interval of some four weeks.  That had an effect on quantification.  We need to take these arguments separately and first of all deal with reinstatement and re-engagement.

	Mr Roberts, as we mentioned, had been a bus driver for the Respondent company.  The legislation requires the Tribunal first to consider whether to make an order for reinstatement:  section 116 (1).  In doing so the Tribunal is required to take into account, inter alia, whether it is practicable for the employer to comply with an order for reinstatement:  section 116 (1) (b).  Practicability is very much a matter of fact left exclusively to the decision of the Employment Tribunal, a tribunal carefully composed to amount, as is often said, to an industrial jury.  Here the Employment Tribunal concluded:

“The Applicant’s oral evidence, given in the absence of any relevant written medical evidence, is that his own general practitioner, even up to today’s date, has still not signed the Applicant as fit for work, and that before he does so there remains a requirement for the Applicant to visit a Consultant.  No date has so far been fixed for such a visit.  Thus the Tribunal has clear evidence that notwithstanding that he now holds a PCV licence the Applicant cannot be taken as being fit to carry out his previous work.”

	Mr Ibekwe fairly accepts that there were before the Employment Tribunal some factors that pointed to impracticability.  Whether those factors were counterbalanced and outweighed by factors against impracticability is essentially a matter for the Tribunal itself.  It cannot be said (and Mr Ibekwe does not say) that there was no evidence on which they could have concluded that reinstatement was impracticable.  It seems to us that the Tribunal’s decision that reinstatement was not to be ordered discloses no error of law.

	As for re-engagement, an order for re-engagement has to be considered if the case for reinstatement fails:  section 116 (2).  But, again, practicability has to be taken into account:  section 116 (3) (b).  If re-engagement is ordered then the Employment Tribunal has to specify a date by which it is to be complied with.  That appears in section 115 (2) (f).  

	The Tribunal here took into account that Mr Roberts was still not signed fit for work and it refers to the difficulty in specifying therefore a date.  What they say is:

“Further, the Tribunal has no date by which to require compliance of either a reinstatement Order or a re-engagement Order in respect of any alternative employment, none of which has in reality been identified.”

	They concluded, in their paragraph 10:

“In all the circumstances we take the view that it would not be practicable for a reinstatement or re-engagement order to be made for the Applicant to go back onto the Respondent’s sickness programme pending the possible signing off as fit at some future unascertained date.”

	And they revert to the subject later, in paragraph 16, where they say:

“As indicated above the Tribunal has taken into account the practicability for the Respondent to comply with an order for reinstatement or re-engagement.  It has decided that it is not practicable.”

	It cannot, in our judgment, be said that that was a conclusion at which no Employment Tribunal properly instructing itself could have arrived and, of course, as Mr Ibekwe will know, we can only deal with errors of law rather than substituting our own views or what we might have decided.

	The Employment Tribunal, taking the view that Mr Roberts had to some extent caused or contributed to his own dismissal, also considered, as they were required to do under section 116 (1) (c) and 116 (3) (c), whether it was just to order reinstatement or re-engagement.  As to that they said this, in paragraph 9:

“The Tribunal has also taken into account whether or not it would be just to make an order for reinstatement (the first consideration or for re-engagement) second re-engagement, given that to any extent the Applicant caused or contributed to the dismissal.”

	And they also held, in their paragraph 16:

“Similarly it [that is to say the Tribunal] has taken into account the justness of whether to order a reinstatement or re-engagement where the Applicant (as is the case here either through himself or his representatives) caused or contributed to some extent to the dismissal.  The Tribunal then considered all circumstances in deciding whether or not to exercise its discretion under section 113.  It decides that it shall not make either such order.”

	That conclusion is, to some extent, debatable.  The Employment Tribunal did not recite why it was that they held that Mr Roberts had, to some extent, contributed to his own dismissal and they do not explain why, in the circumstances, the justice of the case militated against reinstatement or re-engagement.  However, given their conclusion, quite independent of that, on grounds which they did specify and which are sustainable as to the question of impracticability, the vulnerability of the “justice” ground does not, in our view, weaken the overall conclusion.  A case would require some special explanation and perhaps some special facts to be present and to be stated if it were to be supposed that reinstatement or re-engagement was proper to be ordered, even though held to be impracticable.  No such special explanation or special facts can here be seen and we have no reason to think that any such were available.

	So far as concerns reinstatement or re-engagement, we must therefore dismiss the appeal.  That leaves the subject of the quantification of the loss.

	As we mentioned Mr Ibekwe urges that to take into account that Mr Roberts, as a matter of a very high likelihood, would have been dismissed in any case within a short period is a matter that is wrong in law.  We cannot accept that.  It is a frequent form of decision and it is even the case that tribunals can be required to put upon the likelihood of a dismissal a percentage figure, as was shown in the Polkey case in the House of Lords.  Assessment of the likelihood of what would have happened in different circumstances is, of course, inescapably, to some extent speculative, but it is, perhaps more than anything, to be left to those who heard the evidence and who are (as we said earlier) the industrial jury.

	As for the actual computation of the basic award, leaving aside that point, it does not seem that it is argued that it was wrongly computed at £630.  As for the compensatory award, the Tribunal in their paragraphs 18 and 19 said this:

“As to compensatory award the Tribunal has considered what is the loss of earnings in this case.  We find in our deliberations that several factors are to be taken into account.”

	And then they have a series of bullet points (as they are called) and the first is:

“At the date of termination of employment the Applicant was receiving statutory sick pay and immediately from that date was receiving equivalent benefits by way of incapacity benefit and income support.

	The second bullet point:

“The Tribunal accedes to the argument by the Respondent that had matters been followed procedurally correctly there would have been an extremely high likelihood that the Applicant would have been dismissed under the same circumstances:  we assess that delay at four weeks.”

	The third bullet point:

“Notice of three weeks of the Applicant’s actual salary i.e. notwithstanding sickness has been paid.”

	The fourth bullet point:

“On the evidence virtually nothing has been done by the Applicant to mitigate his loss.”

	Paragraph 19:

“In these particular circumstances we decide that we can make no award in respect of loss of earnings.”

	Complaint can be made about that remark about the absence of any attempt at mitigation and the point is made in the Skeleton Argument, it is, in effect “How could Mr Roberts be expected to mitigate if off sick in any case?”, a simple and straightforward point.  But it does have weaknesses.  Of course, one can be unfit for one type of job and yet fit to mitigate by doing another and it could be that a bus driver’s job falls into such a category.  But, more importantly, even if one leaves aside that reference to mitigation, the other factors in those bullet points could, and almost inevitably would, necessarily have led to a conclusion that no loss was being suffered.

	Mr Ibekwe has an argument under section 115 (2) of the Act, but 115 (2) of the Act only arises where an order for re-engagement is actually made.  It is hard to see how the section or subsection assists him, given that there was no order made.  He has also handed us a photocopy of the recent case Raspin, but we do not understand it to preclude a tribunal taking into account, as did this one, firstly a high likelihood that a procedurally correct dismissal would, in any event, have been likely to follow the procedurally incorrect dismissal of which complaint was made, and, secondly to take that factor into account when assessing quantification of loss for the purpose of the Compensatory Award.  Overall, the quantification was dealt with in paragraph 20 and what the Tribunal said was this:

“We do however as further elements of compensatory award award the following, to be paid by the Respondent to the Applicant.”

And then they set them out:

“(i)    loss of statutory rights 				£200 
(ii)    expenses					nil
(iii)   loss of benefits:  4 weeks @ £35 making a total of 	£140
Total compensatory award				£340 ”

	We detect no error of law in that formulation.

	We have, we think, now dealt with the several arguments raised by Mr Ibekwe and, having found no arguable error of law in any of them, we must therefore dismiss this appeal even at this preliminary stage.