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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Henderson v. Northern Leisure Plc [2000] UKEAT 70_00_3003 (30 March 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/70_00_3003.html Cite as: [2000] UKEAT 70_00_3003, [2000] UKEAT 70__3003

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APPEARANCES

 

For the Appellant	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY (PRESIDENT): We have before us here as a preliminary appeal the appeal of Mr David Henderson in the matter of Henderson against Northern Leisure Plc.

1. On 14 April 1999 Mr Henderson lodged an IT1 claiming, inter alia, unfair dismissal. On 7 May 1999 the Respondent put in its IT3. There was a hearing on 2 September 1999 before the Employment Tribunal at Abergele, under the chairmanship of Mr G.H. Pritchard sitting with Mr G.T. Bowness and Mr E. Caudwell. That was spread over two days, 2 and 24 September 1999. The decision was sent to the parties on 9 November 1999 and Mr Henderson was very largely successful. Of the six separate decisions, four were in his favour and, in particular, the unanimous decision of the Tribunal was that:

"The applicant was unfairly dismissed for a reason related to the transfer of the Tivoli Nightclub to the respondent. The respondent is ordered to pay the applicant the sum of £4,980 subject to Recoupment Regulations."

2. The hearing dealt with remedy there and then, as is evident from the fact that the figure was mentioned in that way, and the Tribunal said this, in part of the case where they held against Mr Henderson:

"However, we accepted Mr Smith's submission [he was appearing for the employer] that the applicant bears the burden of proof when it comes to proving his loss as a consequence of the unfair dismissal. The applicant tells us that he has earned no money since he ceased working for Tivoli Nightclub, and he tells us he has been in receipt of Job Seekers Allowance of some £121 a week. We were not satisfied that he had taken sufficient steps to find himself alternative employment. It was evident from the earlier hearing that the applicant had ambitions to embark upon a career in health and safety, and he told us that he has been taking courses and applying to go on courses in this area. The lack of earnings from this cannot in justice, be laid at the respondent's door."

The Tribunal considered:

" … he should realistically have been looking for a job at a lower rate to tide him over whilst he bettered himself. The Tribunal were unimpressed by the applicant's evidence of efforts he had made to seek employment. He had not secured a single interview which surprises us for a man of his capabilities. … he should have been prepared to work for lesser pay very much sooner."

And then finally:

"… the Tribunal was of the view that the applicant should only receive compensation for the period of twelve weeks. That is twelve weeks at the rate of £325 net per week which amounts to £3,900."

And then they go into the rest of the computation.

3. Mr Henderson has lodged a Notice of Appeal and it is only that part of the decision which he appeals against. He says this:

"The grounds upon which the appeal is brought are that the industrial tribunal erred in Law in that:-

'The tribunal made an award based on the grounds that the Appellant 'failed to look for work at a lower rate of pay and sooner'. The Appellant would argue on two points. Firstly that in evidence this assumption was incorrect. Secondly the appellant was in receipt of 'JOB SEEKERS ALLOWANCE' and to this end was required by law to meet strict Government guidelines that were checked every two weeks and which were met.

The appellant would argue that the Tribunal has set a level of proof or has set a separate standard that is outside and above the boundaries of evidence required by the Government to consider entitlement for the benefit of Job Seekers Allowance and by doing so set an 'unobtainable level' of proof."

4. Mr Henderson had earlier in October and November 1999 written to the Tribunal on the point and he said, in his letter of 10 October 1999:

"I wish this matter to be reviewed regarding the following points;

1 The figures quoted and the calculations (£4980.00) are correct [he then explains that].

2 That the Tribunal has not taken into consideration the following points, which were given in evidence at the time, when deciding that the Applicant 'has failed to secure paid employment' – 'Should have sought employment at a lower rate earlier', and has only awarded 12 weeks' pay, a figure that I feel in fairness should be a longer period."

And a little later, he says:

"That the applicant has proved that he has made every conceivable effort to obtain work, not only in his profession but in any number of other jobs from Civilian Police Posts, to salesman to accident investigations to vehicle inspectors with the DTI."

He continued:

"Attached are copies of newspaper cuttings and replies received from applications made, further applications have been via Internet to jobs advertised on the World Wide Web and via agencies. The attached copies show the dates and rates of pay offered.

The applicant has never ceased to search for work from the first day of unemployment, he has not refused to apply for any type of work in relation to pay scale whatsoever and has incurred substantial cost and expense to carry out these searches and applications."

5. That was an application for a review and on 21 December the review was refused. The Chairman said this:

"The statement in Para 17 of the extended reasons that the applicant 'should' have sought employment at a lower rate earlier is challenged, and more generally it is contended that the period taken for awarding loss of earnings should have been longer in fairness."

And then, in paragraph 4 of the decision, declining the review:

"Regarding the question of the period for calculating loss, the applicant attaches to his letter evidence of his search for other employment which was never put before the tribunal when remedies were considered on 24 September 1999. It is clear from perusing that evidence that there is no reason why its existence 'could not have been reasonably known or foreseen at the time of the hearing' within the meaning of Rule 11 (1) (d). It was up to the applicant to produce that evidence at the hearing. The applicant does not suggest that the evidence was unknown or unforeseeable. Further about half of the evidence post dates the hearing and is therefore irrelevant to this application."

And a little later, in their paragraph 5, they say:

"The applicant was made fully aware of the need to be prepared to present his evidence at the date set for hearing."

And then, in their paragraph 7:

"The issue of compensation was heard and decided by the tribunal on the basis of the evidence given by Mr Henderson on the day. The tribunal, which includes two lay members with considerable experience of local employment conditions, found that Mr Henderson could and should have secured some work at a lower rate of pay very much sooner. The tribunal were unimpressed by the evidence given by Mr Henderson and surprised at his lack of success in finding work on the basis of what he presented to us (mainly orally)."

6. To revert to the Notice of Appeal, the Tribunal has, of course, to decide the matter on the basis of the evidence put in front of it on the day. Manifestly, it was not satisfied that Mr Henderson had taken sufficient steps to find alternative employment. It held that he should have been prepared to work for less sooner than he did and it was plainly unimpressed with his evidence.
7. So all that has put difficulties in Mr Henderson's way but there is, arising for the first time in our experience, the interesting question of the interplay between satisfaction of the State's requirements for the Job Seekers Allowance and an ability of a Tribunal to decide that a man has not made sufficient efforts to find alternative employment.
8. It is not at all clear, from either the original decision or the reasoning in relation to the declining of a review, whether the Tribunal had had laid in front of it precisely what the requirements are if a man or woman is to satisfy the Job Seekers' Allowance provisions. Drawing on the experience of the lay members sitting with me, I understand their feeling to be that the Job Seekers' Allowance rules do not entitle an unemployed person to say "I will not look for work beneath (let us say) £20,000 a year", or whatever other figure might be relevant, but rather that the claimant has to seek employment, not necessarily at every possible level but certainly at a very broad range of levels. If the case is that a person has satisfied the Job Seekers Allowance provisions, that does surely need to be borne in mind by a Tribunal, and the Tribunal needs also to bear in mind the nature of the requirement of the Job Seekers Allowance. We have no clear view that the Tribunal here ever knew of the provisions of the rules or the practice in relation to them. They knew that the Job Seekers Allowance was applied for and that the Job Seekers Allowance rules were regarded by the Department as satisfied but it is not at all clear whether they knew quite what the result or consequence was of that test having been satisfied. In other words, they did not know precisely what the Job Seekers Allowance provisions were and this, it seems to us, gives an opening to Mr Henderson. There is an arguable point in this area. Whether there is a good point or not, of course, will be ultimately for the full hearing but we do see this as an appropriate matter to go to a full hearing.
9. A further consideration arises (and I should add that Mr Henderson is not in front of us today; we have had no one in front of us today). We think it would assist the full hearing to know what the position was as to the Tribunal's knowledge of the Job Seekers' Allowance requirements and so, even at this stage, although we have no express request put in front of us, we think it would be helpful if the Chairman were to be asked to supply his notes as to the evidence laid in front of the Tribunal at the original hearing of the contents of the Job Seeker Allowance rules and how far Mr Henderson had satisfied them. Indeed, any other notes that relate to the Job Seekers' Allowance and Mr Henderson's relationship with them would assist the full hearing.
10. We do see, as we have indicated, there to be an arguable point of law here and on that basis we simply adjourn the matter to a full hearing, with that direction as to Chairman's Notes. We mark this Category B and give it an estimate of half a day.