Appeal No. EAT/1019/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 April 2002

Before
HIS HONOUR JUDGE J R REID QC
DR D GRIEVES CBE
MR A D TUFFIN CBE

BRIGGS OF BURTON PLC	APPELLANT

MRS S OAKES	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR D HARDSTAFF
(Solicitor)
Messrs Eversheds Solicitors
1 Royal Standard Place
Nottingham
NG1 6FZ	

JUDGE J R REID QC:
1.	This is a preliminary hearing of an appeal from a decision of the Employment Tribunal held at Leicester on 3 July last year.  The decision was sent to the parties on 20 July.  By the decision the Tribunal held that the late Mr David Oakes had been unfairly dismissed by the Respondent and ordered that the Respondent pay Mr Oakes’ estate the sum of £18,563.74 calculated in the way set out in the extended reasons.  

2.	Two points were taken in the Notice of Appeal.  The first point was that the Tribunal had been wrong in finding that the Appellant had treated Mr Oakes as in a pool of his own for redundancy purposes and that as a result there was an error of law in holding that he had been unfairly selected for redundancy.  We indicated that our preliminary view was that there was not much of a point of law in that and Mr Hardstaff very realistically did not pursue that point.  

3.	The second point and the substantive point relates to the award, the bulk of which was made up of the death benefit which would have accrued to Mr Oakes under the Employer’s Scheme if he had died still in service.  It was said by Mr Hardstaff that so far as that was concerned the Tribunal was wrong in holding the loss of the death benefit was a loss to Mr Oakes or his estate because this would have been payable to his dependants and it was therefore not a loss sustained by the complainant.  Reference was made to Johnson v. Unisys and also to The Employment Tribunals Enforcement in Case of Death Regulations 1976  and it was submitted that section 123 Employment Rights Act must, in referring to loss sustained by the complainant be referring to loss sustained only by a deceased complainant’s estate rather than by dependants of his.  

4.	It seems to us that there is clearly an arguable point in relation to this.  It may be that the Tribunal erred in law, it may be that what the Tribunal should instead have said to themselves was that one of the benefits accruing to Mr Oakes from his employment was the potential death benefit to his dependants were he to die in service and that he has lost something by being deprived of that benefit.  It may that what the Tribunal should have done was to make some assessment connected in some way with premiums that he would have had to pay in order to write a similar whole life policy for the benefit of his dependants.  These seem to us to be interesting and serious questions.  So far as we are aware, this is not something which has been ventilated before.  

5.	In those circumstances, what we propose to do is direct that this quantum point only goes to a full hearing and we suggest that it should be listed in Category A.  It does not seem to us to be a particularly long point and we therefore give a time estimate of half a day.  The Tribunal had before it the employee’s handbook relating to pension benefits, a document headed Briggs Pension Scheme which set out the benefit to Mr Oakes and no doubt it will be helpful for the Employment Appeal Tribunal to have that document in the bundle.  The respective parties should no doubt consider whether there is anything to be gained by also having available the trust deed itself, which was not available to the Employment Tribunal. Speaking for myself, I rather doubt that it will assist but it may be something that the parties would wish to consider.  

6.	We therefore allow this matter to go to a full hearing only on the second of the two points raised.