Appeal No. UKEAT/0113/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 20 September 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MISS S B AYRE
MR P M HUNTER

 

ROMIUM LTD 	APPELLANTS

 

 
Ms J McMILLAN	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellants	Mr D Reid, Employment Consultant
Of-
Just Employment Law
7 Greens Road
Blairlinn
CUMBERNAULD   G67 2TU

 

For the Respondent

 

 

 

Ms M Gribbon, Solicitor
Of-
Messrs Digby Brown
Solicitors
Employment Unit
The Savoy Tower
77 Renfrew Street
GLASGOW   G2 3BZ	

 

 

 

 

 

 

 

 
SUMMARY
 
PRACTICE AND PROCEDURE

Remit to Employment Tribunal – scope of contribution

 

 

 

 

 

 

 

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employer, consequent to a second hearing before the Employment Tribunal, consequent in itself from a hearing before this Tribunal, which granted the appeal to a limited extent bearing upon the question of future loss.
 
2.	The hearing before this Tribunal in June 2003, we determined that the Employment Tribunal had not properly addressed the issue of future loss, inasmuch, that, although it was apparent that there had been a loss of earnings subsequent to the dismissal, there was no finding that that had been caused by, or contributed to the dismissal, inasmuch that the employee respondent had attempted to obtain similar employment at a similar salary and failed to do so.
 
3.	In remitting the matter back to the same Employment Tribunal on this question, this Tribunal stated as follows:-
 
“We have found it impossible to determine this matter on the Tribunal’s findings in the absence of a clear finding as to whether or not the respondent ever applied for jobs at a similar salary and failed to obtain them or, indeed, that such were not available.  This is the basis upon which a claim for future loss must be established.
 
In these circumstances we consider this matter will have to be reconsidered by the same Tribunal and we will allow the appeal to the extent of remitting it back to the same Tribunal for further consideration of the issue of future loss whether by further submission or by simply further reconsideration against the background we have set out.”
 
4.	At the subsequent hearing the Tribunal were invited, on behalf of the employee, to hear further evidence on the matter and after consideration did so.  They then made a finding of future loss based on the evidence that they heard before them on that occasion, it being subject to cross-examination in the usual way and submissions were made.
 
5.	Mr Reid, appearing before us at the latest hearing, submitted that the jurisdiction of the Employment Tribunal on a remit, was limited to that remit created by this Tribunal and the phraseology used by this Tribunal excluded the hearing of further evidence at the subsequent hearing before the Employment Tribunal.  They had accordingly erred in law by allowing such to happen, and, in any event, had exceeded their jurisdiction in so doing.  It was, he submitted, in any event, inappropriate to allow, to put it simply, the employee a second bite at the cherry.  If there was no evidence before the initial Tribunal on the relevant factor, that should have been the finding.
 
6.	Ms Gribbon, appearing for the respondent, submitted that the phraseology used by this Tribunal, and, not least, the phrase “reconsideration” admitted the opportunity to the Tribunal to hear further evidence if it so desired.  To do so was consistent with the interests of both parties in the sense of having the matter properly explored and investigated.
 
7.	Reference was made to Aparau v Iceland Frozen Foods plc [2000] IRLR 198 but we do not consider that this adds anything to the general position in this case.
 
8.	This Tribunal recognises that in making a remit, the phraseology that it uses must be construed objectively by the Employment Tribunal whose jurisdiction in dealing with the matter is limited to that construction.  It has no further general jurisdiction to hear the case.
 
9.	Having said that, however, the word “reconsideration” confers a discretion upon the Employment Tribunal in determining how best to go about the matter that has been remitted to them.  In contrast to submissions, reconsideration, can, in our view, therefore, contemplate further evidence.
 
10.	We are fortified in this view by the fact that, although it is perfectly legitimate for Mr Reid to point out that, on one view, the appellant failed to make out her case in future loss at the initial Tribunal hearing, it also has to be said that a loss on the face of it was undoubtedly suffered.  The procedure followed by the Tribunal at the actual hearing on the evidence was obviously fair and balanced and no complaint is made about the actual finding.
 
11.	In these circumstances we consider that the Tribunal was entitled to rehear the matter in relation to evidence, and, accordingly, took a course that was open to it in the circumstances.  No further complaint is made as to the result.
 
12.	In these circumstances we consider this appeal should be refused.