Appeal No.	 EAT/0458/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 October 2001

Before
HER HONOUR JUDGE A WAKEFIELD
MR D CHADWICK
LORD DAVIES OF COITY CBE

TAUNTON ASSOCIATION FOR THE HOMELESS LTD	APPELLANT

MRS N E BOSWELL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MARTYN WEST
(Advocacy Manager)
Peninsula Business Services Ltd
2nd Floor
Stamford House
361/365 Chapel Street
Salford
Manchester
M3 5JY	
For the Respondent	MS I OMAMBALA
(of Counsel)
UNISON
Employment Rights Unit
1 Mabledon Place
London
WC1 9AJ	

HER HONOUR JUDGE A WAKEFIELD

1	The final point to be dealt with in this appeal arises out of the second decision of the Exeter Employment Tribunal which was promulgated on 28 February 2000 following a Remedies Hearing on 17 February.  At that hearing the Employment Tribunal heard further evidence from the Respondent and, on behalf of the Appellant, from Mrs Hexstall, the director of the hostel at Taunton.  The Respondent was seeking reinstatement or reengagement.  It is clear from the decision that much of the focus of the hearing was on that issue, as to whether it would be practicable for the Employment Tribunal to make such an order.  In the event they found that it was not.  

2	The Tribunal then turned to the question of compensation.  It is only the finding as to the compensatory award which is challenged.  A sum of £12,000 was awarded under this head.  From the Chairman’s Notes of Evidence it appears that the Respondent said in evidence that she had been unemployed from 14 May (which was the date of the dismissal) and did not sign on until 29 June after the conclusion of the internal appeal against her dismissal.  The letter informing her that the appeal had been unsuccessful had been dated 17 June.  She had then obtained some employment at a lower wage than she had been receiving from the Appellant.  She said, according to the Chairman’s Notes of Evidence:

“I need to get this matter out of the way before looking for other work.  I haven’t really been looking.”

3	The Employment Tribunal dealt with this employment history at paragraph 10 of their decision.  They said this:

“We then turn to the Compensatory Award.  The applicant was dismissed in May 1999.  Some point was made in the evidence that she did not immediately sign on for state benefits.  We attached no weight to that.  She was appealing against the decision to dismiss her and it took some time for that to be resolved.  Thereafter she had hanging over her a dismissal on the grounds of theft.  That was not resolved in her favour until the beginning of January of this year.  In fact in September 1999 the applicant obtained a job as a telephone canvasser, not very well paid employment, but we accept probably the best that she was able to get at the time.  That was full time for a while and then for a time before Christmas she was reduced to part-time working.  After Christmas she was promoted and she is now a customer services officer and has so worked since 4 January 2000.  She is paid a basic wage of £140 on top of which she receives some commission.  This is paid 3 monthly in arrears and she has not yet received her first payment.  Some days she earns more than others as might be expected.  She thinks that she might earn as much as £15 per day but feels that an average at the moment of about £10 per day is probably most accurate.  In our view we should regard her current gross earnings as being in a total order of £190 per week, that is £140 basic plus £50 a week commission.  That falls someway short of the gross earnings of £15,200 that the applicant enjoyed with the respondent.  Plainly the applicant does not regard her current employment as being particularly satisfying.  She would prefer to regain employment in some field where she could work with people who as she puts it “people who need help”.  She told us, and we accept, that she applied to the mental health services but was turned down for a post that would have paid her between £14,000 and £15,000 per year.  We accept that she will probably continue to apply for posts of that sort.  However, she is aged 50 and her experience in that field is limited.  She worked as a checkout operator before working with the respondent.  Our conclusion is that on the balance of probabilities the applicant will have difficulty in getting her earnings back up to the sort of level that she was earning with the respondent by the time she comes to retire at the age of 60.  At present on the basis of the calculation that we have set out she is earning a little less than £10,000 per year.  In very round figures she probably has a net loss at present compared with her previous earnings in the order of £4,000 per annum.  We do not think necessarily that that loss will continue at that rate until she retires but we think that it will continue for some time and that she will probably have some continuing net loss until she retires at the age of 60.”

It is said by the Appellant that in this paragraph the Tribunal erred in law in that they failed to assess properly the compensation and in particular failed to limit the award in view of the Respondent’s lack of effort to mitigate her loss.  It is further contended that no reasonable Tribunal could conclude that the Respondent had mitigated her loss in the circumstances set out in the decision.

4	For the Respondent, while it is accepted that the Employment Tribunal nowhere specifies that it is dealing with the issue of mitigation of loss, nor that they found that the Respondent had taken all reasonable steps to mitigate her loss, it is argued that that is the substance of the findings in paragraph 10, such findings being open to them on the evidence and not perverse.  We were referred by counsel for the Respondent to the case of Bessenden Properties Ltd v Corness [1974] IRLR 338, where it is sufficient just to quote from Lord Justice Roskill:

“Questions of mitigation are questions of fact.  When one party seeks to allege that another party has failed to mitigate a loss, the burden of proof is upon the party making the allegations.”

5	The decision of the majority of this Appeal Tribunal is that the Employment Tribunal erred in law in their decision as regards the issue of mitigation and loss in that they failed to take account of, or to explain why they need not take account of, firstly, the failure by the Respondent to take any steps to seek work between 15 May and 29 June, and secondly, the failure by the Respondent to look for any better employment up to the date of the Employment Tribunal hearing.  From paragraph 10 and from the decision as a whole it is not possible to know whether or not the Employment Tribunal specifically addressed its mind to the issue of mitigation of loss, nor what conclusions they made as to the reasonableness of the Respondent’s actions or failures to act.  

6	The majority decision therefore is that on this issue the appeal succeeds and that the question of the compensatory award must be remitted for re-hearing by a differently constituted Employment Tribunal.  

7	The view of the minority is that in paragraph 10 of the decision the Employment Tribunal did adequately explore the issue of mitigation of loss and that it is implicit in their decision, although nowhere expressly stated, that they were satisfied that the Respondent had taken all reasonable steps to mitigate her loss.