Appeal No. EATS/0043/02

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 28 April 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MR A J RAMSDEN
MISS A MARTIN

 

BALGILLO CATERERS LTD	APPELLANTS

 

 
MRS LULU KARIM or MEEK	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

 

	APPEARANCES

 

For the Appellants	Mr G Allan, Representative
Of-
Angus Citizens Advice Bureau
11 Millgate
ARBROATH   DD11 1NN

 

 
For the Respondent

 

 

 

Mr R Hutchison, Representative
Of-
Ardoch Services
11 Ardoch Park 
GLENROTHES   KY6 3PJ 

 

LORD JOHNSTON:
 
1.	This appeal raises two separate issues with regard to the award by the Employment Tribunal in respect of both a statutory redundancy payment and also damages in lieu of notice.
 
2.	There were three Tribunal hearings but the final figures were struck at a hearing on 20 June 2002, albeit, that one of the figures was subsequently, of consent, reduced from £719.90 to £539.91.  That related to the redundancy payment.  The background to the matter is that the applicant and respondent worked in a small catering business which had a number of operations but was based at the firm of Tullis Russell.  That contract came to an end and it was held by the Tribunal that the change of contract amounted to a relevant transfer of an undertaking within the meaning of The Transfer of Undertakings (Protection of Employment) Regulations 1981 (“TUPE”) (see hearing on 2 November 2001).  This decision laid the basis for the entitlement to a statutory redundancy payment.
 
3.	The argument presented before us in relation to this aspect of the matter, was that given that Tullis Russell enterprise were only part of the overall work carried out by the applicant, the respondents should not be responsible for the whole of the entitlement to redundancy payment.  However, Mr Allan, appearing for the applicant, was unable to tell us how the figure should be proportioned or reduced and, indeed, proposed no such figure as an alternative.
 
4.	We do not see why the whole employment position should not regulate an entitlement to redundancy payment if such arises and, accordingly, we consider there is no substance in this argument and will not give effect to it.
 
5.	The other issue raises a more total question in relation to the award for breach of contract for £649.84 as a payment in lieu of notice.  It is well settled that such an entitlement is properly to be regarded as damages for breach of contract subject to the usual rules in that context, namely, that loss must be established and there is a duty to mitigate (Westwood v Secretary of State for Employment [1984] IRLR 209).
 
6.	The crucial finding here is to be found at the end of the second hearing dated 6 March 2002 where the Tribunal, having considered the evidence in relation to whether or not subsequent to the termination of the relevant contract, the applicant had worked for a firm known as Scottish Catering Enterprise at Knockhill racing circuit and had determined, against the assertions of the applicant, that she had so worked.  On that basis the Tribunal, at the conclusion of its decision, held, that had they required to consider the matter, they would have taken the view that it would not have been just and equitable to make a compensatory award to the applicant.  The reason why no award was made in fact, was because the Tribunal determined that she had not been unfairly dismissed.
 
7.	The significant fact, however, as emphasised by Mr Allan, is that as a matter of credibility, the Tribunal held positively that she had worked subsequent to the termination of the relevant contract and this should mitigate or reduce the loss in respect of absence of notice in accordance with the principle of Weston, quite apart from any questions of honesty.
 
8.	Mr Hutchison’s response was simply to refer to the relevant production from the managers of Knockhill which was very vague in its terms.  It is to be found on page 47 of the bundle and is a letter dated 10 January 2002.
 
9.	This matter gives us some concern having regard to the vagueness of the relevant letter but, on the other hand, we consider that, upon the face of the matter, there is an inconsistency between the final award to the applicant of the sum in question and the finding at the previous hearing that she would not have been entitled to compensation if such had been a relevant consideration for the reasons given.
 
10.	We consider that that finding does not sit easily with the award and that, accordingly, applying broad principles of equity we are not satisfied therefore that the evidence discloses an actual loss which has entitled the applicant to the money.
 
11.	We are also influenced by the fact that upon the findings of the Tribunal she has not told them the truth.
 
12.	In these circumstances we consider this appeal succeeds to the extent that we will quash the award of £649.84.  The amended redundancy figure of £539.91 will stand.