Appeal No.  UKEAT/0056/05/RN

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HS

	At the Tribunal
	On 18 January 2006

 
Before
THE HONOURABLE LADY SMITH
MISS J A GASKELL
MR R P THOMSON

 
 
BMB RECRUITMENT 	APPELLANT

 

MRS LISA ANN HUNTER	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

 
	APPEARANCES

 

For the Appellant	Mr M West
Deputy Manager
Peninsula Business Services Ltd
Delphian House 
Riverside
New Bailey Street
Manchester
M3 5PB	
For the Respondent	Mr D Reekie
Advocate
Quantum Claims
Employment Division
70 Carden Place
Queens Cross
Aberdeen AB10 1UP	

SUMMARY

Claimant’s claim struck out on grounds of having conducted his claim in a scandalous manner, tribunal having issued a prior warning to him about his conduct.  Scandalous conduct of case continued notwithstanding warning.  On appeal to the Employment Appeal Tribunal, it was held that his notice of appeal disclosed no reasonable grounds but, rather, evidenced an intention to persist with the same conduct.
 
Topic Code – 8H

 

THE HONOURABLE LADY SMITH
1.	This is the case of BMB Recruitment against Lisa Anne Hunter.  The case concerns the claim brought before the Employment Tribunal in respect of a case in which the Claimant alleged unlawful discrimination contrary to Sex Discrimination Act 1975 and that she had been unfairly dismissed.  This judgment represents the views of all 3 members who had the opportunity to pre read the papers.  We will refer to the parties as Claimant and Respondents.
 
Introduction
2.	This is an appeal by the Respondents in those proceedings against the decision of an Employment Tribunal sitting at Edinburgh, Chairman, Mrs S Craig, registered with Extended Reasons on 17 May 2005.  The decision of the Employment Tribunal was that the claim was well founded in both respects and they found the Respondents liable to make payment of compensation to the Claimant in the sum of £15,397.91 together with the basic award of £260.00.
 
The Issues3.	The only relevant issues for the appeal are whether the Tribunal erred in allowing the Claimant full compensation throughout a period of re-training and whether they erred in giving no credit for any prospective, casual or temporary earnings whilst the Claimant was completing the college course she began after leaving the Respondents’ employment.  These were the 2 matters set out in the Respondents’ Notice of Appeal.
 
The Facts 
4.	The Claimant commenced employment with the Respondents on 29 October 2001.  The Respondents are a recruitment business.  The Claimant became pregnant and went on maternity leave.  She was at one point required to go into work during her maternity leave.  When she returned from maternity leave in September 2003, she was told that her job had effectively gone and was dismissed.  The Tribunal found that the reason for her dismissal was that she had been pregnant on maternity leave and that she had accordingly been unlawfully discriminated against.  The Claimant had been earning £298.00 gross per week on average prior to her dismissal.  Had she returned to work she would have done so on a reduced task basis and would have earned £145.00 gross per week.  She secured alternative employment for a short period from 13 October 2003 from which she earned £1,430.00 net.  She sought alternative employment without success and then decided to re-train.  She undertook an HNC course in beauty therapy commencing on 30 August 2004 which was due to finish in mid-June 2005.  The Claimant intended to start her own business thereafter.
 
5.	The Tribunal found that in respect of injury to feelings the Claimant was entitled to payment of a sum of £5,000.00.  They also held that she should be compensated in respect of loss of earnings up to and including the date on which her college course was due to end.  They accordingly awarded her a total of 95 weeks loss of earnings at the rate of £115.00 per week, £115.00 being their estimate of her likely net earnings given that the Claimant was earning £145.00 gross.
 
6.	The Tribunal found that it was reasonable for the Claimant to proceed by embarking on a college course and furthermore that it was reasonable to assess compensation on the basis that her loss would end once the course was finished.  Questions as to whether she might have sought employment instead of taking up the college course or whether she might have secured employment in addition to her college course were simply not issues in the case before the Tribunal.  

The Respondents’ Case
7.	On appeal before us Mr West sought to argue that the fact that the Claimant had had employment after leaving the Respondents at a salary that almost matched what she would have been earning from the Respondents showed that she could have commanded equivalent earnings rather than embark on re-training at her employers’ expense.  That submission ignored however the findings in fact to the effect that that job was only a temporary one and following its termination the Claimant had made efforts to secure alternative employment but without success.  It also ignored the finding that she reasonably mitigated her loss by taking the college course.
 
8.	Mr West submitted that the Tribunal appeared to accept that it was reasonable for the Claimant to do the college course but clearly she had earnings options during that course, he said.  When asked to point to any finding that would have enabled the Tribunal to proceed on that basis he was unable to do.  Mr West, in his submissions referred to the case of Nohar v Granitstone [1974] ICR 273 and the discussions there regarding the principles that apply when an Appellate Court is considering interfering with the assessment of compensation.  It is however a case which has long since been overtaken by other authorities such as the case of Yeboah v Crofton. 
 
9.	The appeal was resisted on behalf of the Claimant whose counsel, in accordance with what had been her position from the time of the initial response to the appeal, submitted that it was ill founded.  The Respondents did not, it was said, point to any error of law or perversity on the part of the Tribunal.  Counsel for the Claimant in a submission with which we agree said the Respondents seem to be suggesting that the Tribunal were wrong to have made no finding on something they should have made a finding about without being able to point to any evidence on which that finding could have been made.  Turning to the relevant legal principles the legal principles to be applied had been correctly stated by the Tribunal in their clear, concise and cogent judgment.  We do not propose to repeat them here.
 
Our Conclusions
10.	We are readily satisfied that this appeal is without merit.  The Tribunal made no error.  None was pointed to nor indeed argued. To say that the Tribunal should have found differently without pointing to any good reason in support of that assertion does not amount to an argument of error in law.  They reached a conclusion on the appropriate award of compensation by applying the relevant law and on  facts found, which they were well entitled to reach.  
 
11.	That being so, we require to consider the application for costs that was made on behalf of the Claimant under and in terms of Rule 34(a) of the Employment Appeal Tribunal Rules 1993 as amended, warning of which was given in the Respondents’ response to the Notice of Appeal.
 
12.	Now that we have heard the argument advanced in support of the grounds of appeal that were allowed at sift through to the full hearing we are of the firm view that this appeal was wholly misconceived.  It is evident from what was said that the fundamental applicable principles were misunderstood by the Respondents.  That impression is compounded by the fact that the only authority to which reference was made was of no assistance and that two of the authorities lodged by the Respondents were not only not in point since they related to the way in which compensation should be calculated in an unfair dismissal case but had been superseded by later decisions.
 
13.	We have considered the submissions made regarding the fact that the case got through the sift and we have had regard to the fact that the case got through the sift but  now that we have heard the argument in support of the briefly stated grounds of appeal we cannot find that there was ever any merit in them.  We have also taken account of the arguments advanced regarding delay in the intimation of authorities.  We heard from Mr Reekie that any delay was related to difficulties that the Claimant was having in understanding what the authorities lodged were to be used for and it took some time to decide what was required to be lodged in response.  That being so they still managed to give intimation within a very short time.  We cannot see that anything turns on that in this application for costs.
 
14.	In all the circumstances we are satisfied that this is a case in which it is appropriate to make a costs award.  Mr Reekie indicated that a reasonable estimate of the expenses incurred by the claimant was £1,500 and sought an award of that amount. We note that Mr West indicated a preference for our fixing the award of expenses at £1,500 rather than remitting the issue for taxation.  We will, accordingly, award that sum as expenses.