Appeal No. UKEAT0508/06/CEA 
UKEAT0522/06/CEA   

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 April 2007

Before
HIS HONOUR JUDGE SEROTA QC
MR D WELCH
MR S YEBOAH

DUGDALE PLC	APPELLANT

MR G CARTLIDGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR N SIDDALL
(of Counsel)
Instructed by:
Messrs Baxter Caulfield Solicitors
13 Station Street
Huddersfield HD1 1LY	
For the Respondent	No appearance or representation by or on behalf of the Respondent	

SUMMARY
Unfair Dismissal – Automatically unfair reasons / compensation
Employment Tribunal decision that Respondent has failed to comply with Schedule 2 Part 1 of  the Employment Act 2002 contrary to authorities of Alexander v Bridgen Enterprises,  YMCA Training v Stewart and Silman v ICTS.`	

The Employment Tribunal also took the wrong multiplicand for assessing future loss.  The correct multiplicand was the sum the Claimant would have earned had he continued working.

The Employment Tribunal also made an award of £500 in respect of loss of statutory rights when the Claimant had only sought £200 and no notice was given to the Respondent of the possibility of awarding a greater sum.  

HIS HONOUR JUDGE SEROTA QC
1.	This is an appeal by the Respondent from a decision of the Employment Tribunal at Leeds chaired by Mr Hildebrand.  On 21 July 2006 the Employment Tribunal found that the Claimant had been unfairly dismissed. On 6 September 2006 the Employment Tribunal disposed of Remedies.

2.	This appeal is concerned essentially with three matters.  Firstly, the finding by the Employment Tribunal that the Claimant’s dismissal was automatically unfair under Section 98(A)(i) of the Employment Rights Act by reason of the Respondent’s failure to comply with the procedure in Part 1 of Schedule 2 of the Employment Act 2002, secondly, the manner in which the Employment Tribunal calculated the loss of future earnings, and, thirdly, the manner in which the Employment Tribunal calculated a sum in respect of loss of statutory rights.  Other findings that were made are not the subject of appeal:  in particular, the finding that the Claimant was unfairly dismissed and therefore entitled to compensation.  On 22 September 2006, His Honour Judge McMullen QC referred certain questions back to the Employment Tribunal.  On 22 September 2006, His Honour Judge Ansell referred the appeal in relation to unfair dismissal to a preliminary hearing.  On 14 October 2006, Mr Justice Underhill referred the issue of remedies to a preliminary hearing.  Both of these matters were considered by Mr Justice Elias, who at a preliminary hearing on 9 January 2007 referred these appeals to a full hearing with which we are now concerned.

3.	The Claimant, as we shall call him, has not attended.  He made clear that he was not in a position to attend, and has asked us to have regard to previous submissions made on his behalf.  We have read those and have taken them into account.

4.	We now turn to the factual background as is relevant to this appeal.  The Respondents are manufacturers of PVC compounds and dry blends.  The Claimant worked for the Respondent as a production operative working shifts including nights.  Until the matters that gave rise to the Claimant’s dismissal the Respondent operated a system whereby its factory or works was open seven days a week and employees worked on a six day shift pattern.  They worked four days and had two days off.  Consequently by working four twelve-hour shifts in every six days their average weekly hours were something in excess of fifty-six hours.  

5.	Clearly after the enactment of the Working Time Regulations the issue of an opt-out arose.  It does not appear to have been satisfactorily resolved for a number of years.  The evidence suggested that in 2003 the workforce as a whole had refused to sign a contract, which included an opt-out because of certain irregularities.  Towards the end of 2005, the Respondent determined that it was going to alter its pattern of work so that its works would operate on a five day per week, rather than a seven day per week, basis;  and it wanted its employees to work five twelve-hour shifts.  This would necessitate their signing the appropriate opt-out.  The Claimant was unwilling and signed a non-acceptance form.  Clearly, the work on the new shift pattern would have required him to work a minimum of 60 hours per week.  For reasons which do not concern us because they are not relevant to the issues, the Claimant declined to work the 5 shifts per week; and failed to attend on a shift on 13 January for which he had been rostered in the expectation that he would work 5 shifts.  He had already worked 4 12 hour shifts that week.  The Claimant, it is said, was the only member of staff to refuse to sign the new terms.  That again does not appear to be relevant to the issues which we have to decide.  

6.	On 17 January 2006 after the Claimant had failed to attend for work on 13 January the Respondent wrote to him.  The letter contains the following.  It firstly sets out the new shift patterns;  and states that it was not acceptable for the Respondent for the Claimant to be the only employee who refused to accept the changes, and it would not be practical or fair for him to continue as if the changes had not been made, and we now quote:  
“Your refusal to accept these changes means that the company is now obliged to consider your employment with it.  If you will still not accept the changes then it appears likely that the Company will terminate your employment on your existing contract.  If we do terminate your existing contract, then it is likely that we will offer you the option to continue your employment on the new terms.  If you accept the new contract then your employment will continue without interruption.  If you do not accept the new contract then your employment will terminate.  You would not be entitled to a redundancy payment.
You are hereby required to attend a meeting with me at Dugdale PLC at 19.00 on the 18th of January.  The purpose of the meeting is to give you the opportunity for you to explain your refusal to accept the new terms and conditions, or to work in accordance with the shift patterns.  In this respect, we will expect you to explain your failure to attend work on 13 January 2006.”

7.	Consequent upon that letter the Claimant attended a meeting on 18 January.  The meeting was attended by the Production Manager Mr Jackson, a Mr Saltonstall, as well as the Claimant.  The Claimant, according to the note of the meeting we have at page 73, was asked if he was prepared to sign the amended terms and conditions contract.  He refused.  He gave an explanation as to why:  he was not prepared to work a 60 hour week.  He informed the meeting he had sought advice through ACAS and the Health & Safety Executive and had been told he could not be compelled to work more than 48 hours.  There was then a discussion as to whether he previously signed an opt-out agreement, something on which there was no agreement.  He made it clear that if he were to be dismissed he would, as he put it, go for unfair dismissal because the Respondent was breaking the 48 hour working week law.  He was then asked why he had not informed any member of the management team about not being at work on 13 January.  His response was that he was not working 60 hours a week.  At the end of the meeting he was issued with an official verbal warning;  and it was explained to him that he had five working days to appeal.  At this point in time the Claimant made clear that he would not be working the following Friday and stated that he could not be given any more disciplinary actions.

8.	That meeting was followed by a letter of 18 January.  That letter refers to the complaint that he was absent from work on 13 January having failed to inform any member of the management team of his absence.  He was therefore issued with an official verbal warning.  He was referred to his right of appeal.

9.	On 20 January he was sent a further letter.  This letter referred to his failure to accept the new shift patterns and terms and conditions;  and he was given notice that his employment was being terminated.  
“You have confirmed that you remain unwilling to accept the new shift patterns or the new terms and conditions, and there would appear to be no reasonable prospect of obtaining your agreement to such.  As you know the company has undertaken a consultation process.  You are now the only employee who has refused to agree.
In the circumstances, I regret that I must inform you that the company is terminating your employment under your existing contract.  You are entitled to 4 weeks notice, so your employment under your existing contract will end on 17th February 2005.  You will be paid as normal during your notice period, provided that you work.  If you would like to leave before the end of your notice period, then we will consider whether to agree to this.  
The reason for the termination of your employment is that you have refused to work the new shift patterns, and refused to accept the new terms and conditions of employment which the company has proposed, in circumstances where the company has identified a real business need for such changes, has consulted about them, and where you are the only person who has refused to accept them.
You are entitled to appeal against the decision to terminate your employment.  If you wish to exercise this right of appeal then you should give me notice within 5 working days.  Your appeal would be dealt with by Tony Walden and Darren Rowell.”

The Claimant exercised his rights to internal appeals.  His appeals were rejected.  

10.	When the matter came before the Employment Tribunal, the Employment Tribunal set out the facts to which we have referred.  It referred itself to the 1998 Working Time Regulations 2, 4 and 6.  We need not set these out, they are not controversial.  Because the Claimant worked nights he was deemed to be a night worker, and his pattern of work over 5 days in the reference period of 6 days was significantly in excess of 48 hours per week.  It was clear that he could not be required to work unless he opted-out.  This is dealt with by the Employment Tribunal at paragraphs 29-30.  The Employment Tribunal then went on to resolve an issue as to whether the Claimant had previously signed an opt-out agreement:  this was resolved in the Claimant’s favour.  The Employment Tribunal concluded that the Respondent had failed to show a potentially fair reason for dismissal, see paragraph 35 of the decision of the Employment Tribunal;  and further the decision was also unfair within the meaning of Section 98(4) of the Employment Rights Act because the dismissal was in effect as a result of a ultimatum to the Claimant to agree to do work he was not required by his contract to do.  The question of unfair dismissal is not the subject of an appeal and we say no more about it.

11.	At paragraph 41 of its decision, the Employment Tribunal went on to consider the question of automatic unfair dismissal:
“Finally, we addressed the question of the Employment Act 2002.  Insofar as there was a disciplinary procedure in this case, it was constituted by the Respondent’s letter dated 17 February calling the Claimant to a meeting to explain his failure to attend work on 13 January 2006.  The Claimant received an oral warning, confirmed in writing on 18 January 2006.  Nothing else was said about his continuing employment until he received, without further formal contact with the Respondent, a letter of dismissal dated 20 January 2006.  The tribunal considered that this was a breach of the statutory procedure.  The Claimant was dismissed without a meeting and without the opportunity to attend.  The dismissal is therefore automatically unfair and the Respondent was in breach of the statutory procedures in dismissing the Claimant in this way.”

The Employment Tribunal came to this conclusion having considered the meeting to which we have referred and the documents to which we have also referred.  

12.	At the subsequent hearing dealing with remedy, the Claimant was awarded a total of £17,799.28.  Of that, in addition to the 20% uplift which is the subject of an appeal by reason of the challenge to the finding of automatically unfair dismissal, the Employment Tribunal calculated loss of future earnings on the basis of the Claimant working a 56 hour as opposed to a 48 hour week.  Secondly, the Claimant was awarded a sum for loss of statutory rights.  The Employment Tribunal dealt with the matter at paragraph  11:
“11.	We turn to the question of loss of statutory rights. There are a number of conventional sums which are considered appropriate in respect of this head. We have gone slightly above those figures for the purposes of this award because we considered that the Claimant has lost valuable permanent employment as a result of his dismissal, and it may be some considerable time before he is in a position to obtain other permanent employment given the present structure of the job market, and also the type of industry in which the Claimant has worked throughout his career. Those industries are activities where agency working is now a major factor relied on by employers to deal with rapidly changing economic circumstances.”

13.	The Employment Tribunal gave additional reasons, which we have in our bundle at page 63.  In relation to the award of £500, it is suggested by the Employment Tribunal that the Claimant in a schedule of loss prepared for the Employment Tribunal had not claimed any figure for loss of statutory rights.  We note that this in fact is incorrect;  and the Employment Tribunal appears to have overlooked that in the schedule of loss we have, at page 67, the Claimant did claim a sum of £200 in respect of loss of statutory rights.

14.	The Employment Tribunal then went on at paragraph  5 on page 65 to say the following:
“5.	When considering the amount of the award under this head, the Tribunal took into account the fact that there is no statutory basis for any particular sum, the fact that inflation has eroded the value of conventional sums awarded in the past and the fact that the Claimant’s average gross earnings were at a level approaching £500 per week. We also took into account the Claimant’s age; and his likelihood of obtaining other secure employment, in that he had, failed to do so despite diligent attempts to mitigate up to the date of the Hearing.  We were also aware of the authorities of Daley v A E Dorsett (Almar Dolls) Limited [1981] IRLR 385 and the subsequent authority of S H Muffett Limited v Head [1986] IRLR 488.
 6. Taking those various considerations together, we made an award of £500 under this head.”

15.	We now turn to consider the applicable law.  We start by referring to Section 98A(1) of the Employment Rights Act:
“A.   [Employment Rights Act 98A Procedural fairness]
[(1)     An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if—
(a)     one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 (dismissal and disciplinary procedures) applies in relation to the dismissal,
(b)     the procedure has not been completed, and
(c)     the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.”

16.	We then refer to Schedule 2 of the Employment Act 2002 which sets out the statutory dispute resolution procedures:

 “B.    Schedule 2 Employment Act 2002
STATUTORY DISPUTE RESOLUTION PROCEDURES
PART 1
DISMISSAL AND DISCIPLINARY PROCEDURES
CHAPTER 1
STANDARD PROCEDURE

Step 1: statement of grounds for action and invitation to meeting 
1	(1)	The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
	 (2)	The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
 
Step 2: meeting
2 	(1)	The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
 	(2)	The meeting must not take place unless- 
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and
 (b) the employee has had a reasonable opportunity to consider his response to that information.
	 (3) 	The employee must take all reasonable steps to attend the meeting.
 	 (4)	After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

17.	These provisions are relatively new and have been the subject of a number of recent decisions in the Employment Appeal Tribunal.  We start by referring to what the Elias P has said in the case of Silman v ICTS (UKEAT/0630/05) :
“22	The purpose of these procedures is to ensure that there is a proper and fair opportunity for the parties to seek to address any disciplinary issues and other matters which may lead to dismissal prior to the matter ending up in litigation before the Employment Tribunal.  It is not to create unnecessary technical hurdles for either employer or employee.  It will frequently happen in the course of a disciplinary hearing that the evidence emerging will identify potentially disciplinary conduct which, although closely related to the original alleged misconduct, is a variation of it.  That, it seems to us, is precisely the position here.  ……….  Shifts in the focus of the case will not lead to an obligation for the employer to write fresh missives on each occasion.”

We find this a helpful introduction but we also have derived assistance from two other authorities cited to us by Mr Siddall.  Firstly, in the case of Alexander v Bridgen Enterprises [2006] IRLR 422 Elias P had this to say:
	“ 34	First, the purpose of these statutory procedures is to seek to prevent the matter going to an Employment Tribunal if possible by providing the opportunity for differences to be resolved internally at an earlier stage ……………However, to achieve that purpose the information to be provided must be at least sufficient to enable the employee to give a considered and informed response to the proposed decision to dismiss
	 35	Second, these procedures are concerned only with establishing the basic statutory minimum standard. It is plainly not the intention of Parliament that all procedural defects should render the dismissal automatically unfair with the increased compensation that such a finding attracts. They are intended to apply to all employers, large and small, sophisticated and unsophisticated.  They are not intended to impose all the requirements breach of which might, depending on the circumstances, render a dismissal unfair.  This suggests that the bar for compliance with these procedures should not be set too high.” 

We note that Elias J was also concerned that the bar should not be set too low (see paragraph 36).  He continued at paragraph 37:
“	 37	It must be emphasised that the statutory dismissal procedures are not concerned with the reasonableness of the employer’s grounds, nor the basis of those grounds, in themselves.  It may be that the basis for a dismissal is quite misconceived or unjustified, or that the employer has adopted inappropriate or vague criteria, or acted unreasonably in insisting on dismissing in the light of the employee’s response.  These are of course highly relevant to whether the dismissal is unfair, but it is irrelevant to the issue whether the statutory procedures have been complied with.  The duty on the employer is to provide the ground for dismissal and the reasons why he is relying on that ground.  At this stage, the focus is on what he is proposing to do and why he proposing to do it, rather than how reasonable it is for him to be doing it at all.  
	 38	Taking these considerations into account, in our view, the proper analysis of the employer’s obligation is as follows.  At the first step the employer merely has to set out in writing the grounds which lead him to contemplate dismissing the employee, together with an invitation to attend a meeting.  At that stage, in our view, the statement need do no more than state the issue in broad terms. We agree with Mr Barnett that at step one the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty. In other cases it may require no more than specifying, for example, that it is lack of capability or redundancy.  That is consistent, we think, with the approach which this Tribunal has adopted in relation to grievance procedures in the Canary Wharf and other cases.  Of course, most employers will say more than this brief statement of grounds, but compliance with the statutory minimum procedure is in our view met by a limited written statement of that nature.  
	39.	It is at the second step that the employer must inform the employee of the basis for the ground or grounds given in the statement.  This information need not be reduced into writing; it can be given orally.  The basis for the grounds are simply the matters which have led the employer to contemplate dismissing for the stated ground or grounds.  In the classic case of alleged misconduct this will mean putting the case against the employee; the detailed evidence need not be provided for compliance with this procedure, but the employee must be given sufficient detail of the case against him to enable him properly to put his side of the story.  The fundamental elements of fairness must be met. ”
Elias J concluded at paragraph 42:
“As we have said, when determining whether there has been compliance with the statutory procedure, the Tribunal is not concerned with the reasonableness of the employer’s selection criteria.”

18.	We were then referred to a decision of Underhill J YMCA Training v Stewart (UK/EAT/0332/06).   Mr Justice Underhill had this to say at paragraph 9:
9	: it is necessary to look beneath the parties’ own labels and focus on whether the substantive requirements of the statute, which are in simple and non-technical terms, were or were not in fact met…………… In this case there was a letter containing the necessary statement of the alleged conduct and there was an invitation to a meeting to discuss the matter.  That is all that was required, and it is beside the point how the letter and the meeting may have fitted in to the Appellant’s own procedure.  The only possible conclusion on the undisputed facts was that the requirements of step 1 were met.  

Then he continued at paragraph 11:
“11	It does not of course matter that the requirements both of para. 1 (1) and of para. 2 (2) (a) were addressed in the same letter (or letter and enclosure).  The statutory procedure permits the employer to present his case in two stages – stating the “grounds” first (para. 1 (1)), and supplying the “basis” for them later (though in good time before the meeting) - but it does not oblige him to do so, and no doubt it will be common for employers to do what the Appellant did here and state both the grounds for the contemplated action and the basis of those grounds at the same time.”

We now turn to what he said at paragraphs 15 and 16:
15	But the essential point that has to be borne in mind is that the statutory procedures are no more than a minimum.  Complying with them will not necessarily mean that the employer escapes liability for unfair dismissal: it does no more than get him over the first hurdle, and there may (depending on the case) be other steps that he is obliged to take.  All that such compliance means is that he will not be liable for “automatic” unfair dismissal, which – quite deliberately and as a matter of policy – is intended only to be available where the employer has failed to conduct even the most rudimentary procedure.  That is why references such as that made by the Tribunal here (see para. 63) to “the spirit of [step 2]” may be dangerous.  The temptation to bring in by the back door the full panoply of “ordinary” unfair dismissal when interpreting and applying the requirements of Chapter 1 of Schedule 2 to the 2002 Act must be resisted.
16	In our judgment it is inherent in the requirements of step 2 (and specifically paras. 2 (1) and (4)), taken with para. 13 (2) of Schedule 2, that the employer should not announce any decision (or – still less – take any action) until the employee has had the opportunity to put his case at the meeting……………….But if such an opportunity is given, then the fact that the employer announces his decision at some later stage during the meeting itself, rather than concluding the meeting and waiting a day or an hour before doing so, does not mean that he has failed to comply.  

19.	We now turn to consider the law in relation to remedies.  It seems quite clear to us that the function of the Employment Tribunal is to estimate in considering future loss what the Claimant would have earned but for his dismissal.  We do not think it helpful to refer to further authorities on this point because they do not assist.  

20.	We now turn to consider the grounds of appeal.  The thrust of the submissions made to us today in relation to the finding of automatically unfair dismissal are that the Employment Tribunal failed to have regard to the helpful guidance set out in the authorities to which we have referred.  We are satisfied that the procedures set out in the two steps in Schedule 2 of the Act were followed.  The requirement in step 1 that the employer should set out in writing the employee’s conduct which led the employer to contemplate dismissal or taking disciplinary action was clearly met by the letter to which we have referred of the 17 January.  The meeting required in step 2, in our opinion, clearly was satisfied because it is apparent that both issues were discussed:  that is the failure to attend for work on 13 January and, secondly, the refusal to sign new contractual provisions;  and the Claimant was given the opportunity to state his case on both.  The complaint that appears to have been made is that the Claimant was told at the end of the meeting rather than in a subsequent letter and afforded the opportunity of a subsequent meeting to discuss the issue of his failure to sign the new contract.  

21.	In our opinion the Employment Tribunal has taken far too strict a view of the employer’s responsibilities under the Schedule.  Indeed, the point at issue was the subject, albeit obiter, of what Mr Justice Underhill had said at paragraph 16 of the YMCA decision in the paragraph we have already quoted.  It seems to us not only is this authority persuasive but that what Mr Justice Underhill has said is correct.  It is important to bear in mind what was said not only by Mr Justice Underhill but by Mr Justice Elias in the authorities to which we have referred that it is inappropriate to bring into consideration as to whether there has been compliance with the statutory provisions set out in Schedule 2 concepts borrowed from the law of unfair dismissal.  In our opinion, the purpose of the procedures was to give Mr Cartlidge a proper and fair opportunity to address the issues prior to the matter ending up in litigation before the Employment Tribunal.  The procedures are concerned only to establish a basic statutory minimum standard and there is no conflict between a finding that that basic statutory minimum standard has been complied with and a finding of unfair dismissal for other reasons.  It was not the intention of Parliament that every procedural defect should render a dismissal automatically unfair with the consequence that the Claimant would be entitled to an uplift in his compensation.  The fact that the basis for the dismissal was found to be flawed was determinative of the decision that the Claimant had been unfairly dismissed but was irrelevant to the issue as to whether the statutory procedures had been complied with.  We therefore allow the appeal in so far as it relates to the finding of automatically unfair dismissal.  It follows that the 20% uplift in compensation will be removed.

22.	We now turn to deal with the second matter, that is the Employment Tribunal calculated future loss on the basis that the Claimant would have worked as he had prior to the imposition of the new shift pattern 56 hours per week.  In our opinion, the Employment Tribunal clearly fell into error.  The Claimant’s case was that he was only going to work 48 hours per week.  If he had not been dismissed he would only have worked 48 hours per week, unless he was willing to work 60 hours a week.  His loss therefore must be calculated on the basis that he would have worked had he not been dismissed the hours that he said he was willing to work and no more.  It follows that his compensation for loss of earnings needs to be reduced.  The figure therefore for loss of earnings should be reduced firstly to remove the uplift to £6,374.73 and in respect of future loss, including pension loss, to the sum of £3,866.20. 

23.	The third issue relates to the sum awarded for loss of statutory rights.  We have been invited by Mr Siddall to give some general guidance as to the appropriate level of compensation that should be awarded in these cases.  He informed us, and we have no reason to doubt and indeed we accept his experience, that Tribunals award a conventional sum of £250 in respect of this sum.  However, if we were to give general guidance we think we would need rather more material than that which we have and would wish to have some clearer idea of what Tribunals award up and down the country apart from those in which Mr Siddall practices.  So we do not consider ourselves to be in a position to give general guidance.  

24.	Mr Siddall makes two attacks on the way in which the matter was approached by the Employment Tribunal.  Firstly, he says, this was a case in which the Claimant sought £200.  No indication was given by the Employment Tribunal that they were considering awarding a larger sum until their decision was delivered.  It seems to us that it cannot be right for an Employment Tribunal even in the case of an unrepresented Claimant to make an award without notice to the Respondent greater than that which is sought.  Clearly, if during the course of the hearing the Employment Tribunal had indicated to the Claimant that he was not seeking a sufficient large sum and had invited the Respondent to make submissions no complaint could have been made.  It would probably have been sensible in this regard for an application to be made to the Employment Tribunal to review its decision;  but we quite understand Mr Siddall’s position that there was little purpose in doing that as the question of unfair dismissal was already the subject of an appeal and the multiplicand for future loss was also going to be the subject of an appeal. 

25.	The second point raised by Mr Siddall is this.  There is authority in the case of Muffett v Head reported at [1986] IRLR 488 decision of the Employment Appeal Tribunal presided over by Sir Ralph Kilner Brown in relation to compensation for loss of statutory rights.  Mr Justice Kilner Brown had said that because the question of re-employment and the length of that re-employment is an uncertain and imponderable matter it is impossible to quantify such loss.  Since the concept was first introduced in the case of Norton Tool Co Ltd v Tewson in 1972 [IRLR 86], it had been met by the award of a token or conventional sum of £20.  Notwithstanding inflation it remained at £20 but a young Counsel of the name of McMullen persuaded the Employment Appeal Tribunal that it was appropriate to increase the conventional award to the sum of £100 having regard to inflation.  The Employment Tribunal clearly had the Muffett case in mind.  It refers to it in a response to the Employment Appeal Tribunal.  But it appears to have taken account of matters that it is clear from Muffett could not be ascertained in calculating the sum of £500;  and secondly, it recognised that there was a conventional sum generally awarded but it chose to award more.  In our opinion, the Employment Tribunal fell into error and should have awarded whatever the appropriate conventional sum was, which would allow for the appropriate increase by reason of inflation of the £100 fixed in 1986.  It may well be that that sum, as Mr Siddall has submitted to us, these days is £250.  In our opinion, both of the points made by Mr Siddall in relation to the conventional award for loss of statutory rights are made out, and we would therefore allow the appeal on that ground.  

26.	We would like to express our gratitude to Mr Siddall for informing us that his clients wished to have a judgment on a point of principle and did not intend to seek to recoup the sum of £250 or £300, as the case may be, from the sum awarded by the Employment Tribunal.  We would like to express our gratitude to Mr Siddall for his helpful skeleton argument and submissions and the assistance that he has given us, particularly having regard to points that might have been made by Mr Cartlidge had he attended.