Appeal No. UKEAT/0540/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 4 February 2009

Before
THE HONOURABLE MR JUSTICE WILKIE
MR P R A JACQUES CBE
MRS J M MATTHIAS

MR N AHUNANYA	APPELLANT

SCOTTISH & SOUTHERN ENERGY PLC	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR N AHUNANYA
(The Appellant in Person)	
For the Respondent	MR S ALLISON
(Solicitor)
Messrs Blackadders LLP Solicitors
30 & 34 Reform Street
Dundee  DD1 1RJ	

SUMMARY
UNFAIR DISMISSAL:  Mitigation of loss
NATIONAL MINIMUM WAGE
Various decisions in remedy appealed unsuccessfully.

THE HONOURABLE MR JUSTICE WILKIE
1.	In many ways this is a rather extraordinary case.  The Respondent is a very substantial PLC engaged in the provision of energy.  The Claimant, Mr Ahunanya, at all material times except for once, which we will talk about in a moment, represented himself.  Given the standing of the Respondent, the claims made by him against them are, frankly, extraordinary.  They are that he had been unfairly dismissed in circumstances which, on any view, are outrageous and secondly that he had been paid by them regularly at below the national minimum wage.

2.	The Respondent, although seeking initially to resist the unfair dismissal claim and the claim that they had failed to pay him the national minimum wage, when it came to the hearing, and represented by a solicitor, it effectively submitted to judgment in respect of both of these matters and also in respect of other matters, such as the failure to provide him with written terms and conditions of employment.

3.	The Tribunal found as a fact at its substantive hearing held on 15 April last year that the Claimant had been required to work 65 hours a week on average and that he was paid sums which regularly failed to reflect the national minimum wage for the amount of hours worked.  It is unsurprising, therefore, that they found the various claims made proved and furthermore because of, what they called, the Respondent’s blatant failure to follow the statutory dismissal and disciplinary procedure, they applied a percentage uplift of 30 per cent.

4.	The matters the subject of this appeal arose out of the remedies hearing.  In particular they concern three matters.  First, the calculation of the compensatory award for unfair dismissal, for future loss beyond the date when Mr Ahunanya obtained alternative part-time employment; second, the calculation of the award in respect of unpaid wages, that is to say wages less than the national minimum wage;  and third, in respect of the percentage uplift.

5.	The Appellant, Mr Ahunanya, was dissatisfied with the sums awarded by the Tribunal and submitted a Notice of Appeal raising five numerated points.  As is routine the appeal came before a judge, HHJ McMullen QC, under the sift procedure under Rule 3.  He concluded that the appeal disclosed no point of law with any reasonable prospect of success, that it raised essentially matters of fact and that the Tribunal addressed the relevant law, had made clear findings of fact and had given adequate reasons.  Mr Ahunanya, as he was entitled, sought to have that decision, that the appeal should not proceed, reviewed by another judge, Silber J, pursuant to Rule 3(10).  On that occasion Mr Ahunanya had the benefit of representation by Counsel under the Employment Law Appeal Advice Scheme, “the ELAAS Scheme”.  As a result of that Counsel’s efforts, the learned judge on that occasion concluded that, provided he amended his Notice of Appeal, there were matters which warranted consideration at a full hearing of the appeal.

6.	Those matters were enumerated as follows in the amended Notice of Appeal.  (1) The Tribunal adopted the wrong approach to the question of mitigation at paragraph 2.2, page 3 of their Decision, namely they applied the wrong test.  (2) The Tribunal failed to explain why it rejected the Appellant’s claim for unpaid wages accrued and instead accepted the detailed calculation of the Respondent;  (3) the uplift awarded was too low.   

7.	Mr Ahunanya tells us, and we have no reason to disbelieve him, that Counsel who appeared under the ELAAS Scheme whilst explaining to him correctly that ELAAS representation is not available for an Appellant at a full hearing did indicate that he forwarded the papers to the Free Representation Unit in order for them to consider whether to represent Mr Ahunanya.

8.	Mr Ahunanya tells us that he has been informed by the Free Representation Unit on a number of occasions that no such papers were ever forwarded to them and, furthermore, that the most recent information given to him was that they were not going to represent him in this appeal.  Mr Ahunanya, who had successfully represented himself at the substantive hearing and had represented himself at the remedies hearing, sent a skeleton argument to the EAT in advance of this hearing not making, at any point, any suggestion that he would be unable to represent himself or that he wished the hearing of the appeal to be adjourned in order to enable him to obtain representation.

9.	However, he turned up this morning and canvassed, although not in explicit terms, the question of his being represented by the Free Representation Unit.  In light of his statement that they had reported that they would not wish to represent him because they did not have the papers, having never seen the papers, in our judgment the just position for us to take was to hear the appeal.  The Respondent were present; Mr Ahunanya was present, having indicated in writing the nature of this case; his amended grounds of appeal had been settled by Counsel.

10.	In his skeleton argument Mr Ahunanya seems to suggest that he wished us to look at documentary evidence of job applications that he had made and an updated schedule of loss.  It was clear from questioning him, as well as from the notes of the solicitor who represented the Respondent, that at the remedies hearing, Mr Ahunanya had not produced any of this documentation to the Tribunal.  Indeed he said in his skeleton that he was unable to find that documentation and, furthermore, that in evidence before the Tribunal he had indicated that he had only applied for one job other than the one which he obtained in December 2007.  That job was with Scottish Power.

11.	Mr Ahunanya accepted that the schedule which was placed before the Tribunal was the same schedule as he had presented for the hearing on 15 April 2008.  That schedule, in terms of the compensatory award, had sought future loss of earnings of 26 weeks from 15 April 2008, that is to say to the date of the substantive hearing.  It also asserted that non-payment of the national minimum wage was of the order of £21,000 odd, being calculated at an hourly rate of £14.75, which is, of course, more than double the national minimum wage.  His total claim was of the order of £100,000.

12.	In our judgment the only grounds upon which he has leave to proceed before us in a full hearing are the grounds set out in the amended Notice of Appeal.  None of those grounds concern any evidence about other jobs which had been applied for and of which there was no evidence before the Tribunal.  We therefore did not agree to look at this further documentation as it could have been presented to the Tribunal but was not, and in effect it sought to add entirely new grounds of appeal over and above those for which leave has been given for this appeal to proceed to a full hearing.

13.	The Tribunal, in its judgment in relation to unpaid wages, made an order that the Respondent pay £1,406.04.  They said as follows,

“This sum is the amount by which the Claimant was underpaid by the Respondent, being the difference between what he was entitled to be paid for a 65-hour week applying the national minimum wage and the sum he actually received.  The Tribunal accept the accuracy of the detailed calculation of the amount due as set out in page 44 onwards of the bundle prepared for the remedy hearing by the Respondent’s solicitors.”

14.	That is a document which runs to some eight pages.  It starts off with a week by week statement of gross pay and net pay throughout the period of the employment from 5 October 2006 to 14 October 2007.  It then goes on to assume that Mr Ahunanya worked 65 hours in each week and calculates the average hourly pay applicable for each of those weeks taking as the starting point the gross pay figure already referred to.

15.	That exercise gave rise to a series of weekly and hourly pay rates.  The schedule then sets out, by way of comparison, the relevant national minimum wage rates which applied during the period, from 1 October 2006 £5.35 per hour, from 1 October 2007 £5.52 per hour.  In respect of this aspect of the claim the schedule then identifies the various weeks in which the gross pay was less for 65 hours of work than it should have been by a reference to the national minimum wage then in effect.  Those weeks were 16 in number.  It then adds up each of the weekly figures by which the gross amount fell short of the national minimum wage and, on that basis, calculated the total value of the underpayment of £1,406.04 - the figure which the Tribunal awarded.

16.	As we have already indicated, the schedule provided by the Appellant seems to have been on the basis that he had been paid for 37 hours and therefore there was a shortfall of 28 hours payment, being the difference between 37 and 65 hours, which he then calculated by reference to an hourly rate of £14.75 giving rise to a gross figure per week of £413.  He multiplied that figure by the number of weeks he was in employment, 53, to give £21,889.

17.	In our judgment it is plain from the Tribunal’s decision that they approached this claim in the correct way, namely to calculate the difference between what he was entitled to be paid for 65 hours applying the national minimum wage and the sum he actually received.  What Mr Ahunanya’s figure seems to amount to is a calculation of a contractual sum, on the assumption that his contractual rate is £14.75 per hour, no doubt by reference to the global figure that he was paid divided by the number of contractual hours, namely 37.  But that was not the claim he was making.  The claim he was making was to be compensated for underpayments by reference to the national minimum wage.

18.	It is clear to us that the Tribunal was entitled to accept the approach of the Respondent to this part of the claim and to accept the detailed figures provided by them and the approach adopted by them, which was to take each week separately rather than to average the entire total period.  Insofar as there were 16 weeks where the national minimum wage rate was not paid for 65 hours, they were entitled to take that as a correct figure for underpayment thereby giving rise to the award made.  In our judgment, moreover, there is no merit in the assertion that the Tribunal fail to explain why it had adopted the Respondent’s figures.  It is plain from the decision why they did so.

19.	In respect of mitigation of loss, the Tribunal in paragraph 2 says as follows,

“The Tribunal award the Claimant compensation from the date of dismissal, 9 October 2007, until he commenced his new employment on 10 December, a total period of nine weeks and one day.  At the net weekly rate of £383.73 that is an award of £3,530.32.  […]The Tribunal make no award for future loss of earnings.  They are not satisfied that the Claimant has shown he has mitigated his loss in relation to the period from 10 December 2007 onwards.  The Claimant’s evidence was that save for the current job he has with EDF he has only made one other application for employment since 10 December 2007.  It was clear on the evidence he gave to the Tribunal that working 20 hours per week at times within the days of his own choosing currently suit him.  On the evidence heard he did not satisfy the Tribunal that he had mitigated his loss and the Tribunal consider the award of compensation made of £3,840.32 just and equitable in all the circumstances.”

That figure included £310 for loss of statutory rights.

20.	Mr Allison accepts that the Tribunal has in its formal expression rather reversed the burden of proof in respect of mitigation of loss.  Their decision rather reads as though they have approached the matter on the basis that it was the Claimant who had the burden of demonstrating that he had mitigated his loss, rather than that the burden was on the Respondent to demonstrate that the Claimant had failed reasonably to mitigate his loss.  That is undoubtedly the case.

21.	However, the evidence before the Tribunal was clear-cut.  The Claimant had obtained part-time employment, running from 10 December 2007.  Of necessity that part-time employment involved a reduction in his previous level of earnings for 65 hours even at the national minimum wage.  Save, however, for one attempt to obtain other employment with Scottish Power, there was no evidence before the Tribunal that the Claimant had done anything in the subsequent 6 months or so to obtain any other employment.  Rather, the evidence that he submitted was that part time employment did suit his present circumstances.

22.	In those circumstances it is plain and obvious to us that the Respondent did discharge the burden upon them and on the evidence demonstrated that the Claimant had failed to act reasonably in mitigating his loss.  Therefore, it was open to the Tribunal not to make any award for loss beyond 10 December 2007 when he had taken that part-time employment.  Thus, whilst in purely technical terms there was a point worth ventilating before the Tribunal, in substance there really was no merit in the point and in our judgment the second ground of appeal fails.

23.	The third ground concerns the uplift of the compensatory award to reflect what the Tribunal have concluded was the blatant failure of the Respondent to apply the statutory dismissal of disciplinary procedures.  The assessment by the Tribunal that the uplift percentage should be 30 per cent was a determination which they made in the course of the substantive hearing and set out in the short form decision dated 24 April 2008.  The Appellant did not appeal that conclusion in that decision.  He waited until the outcome of the remedies hearing, which applied the 30 per cent to the figures calculated by the Tribunal, before appealing it.  That appeal, therefore, was long out of time.

24.	In any event it is clear from the relatively brief way in which the Tribunal dealt with this point that they had had regard to all the relevant factors and, indeed, they indicated in the decision at paragraph 9 as follows,

“The Tribunal do take into account the Claimant’s acceptance in cross examination that there were two occasions on which the Respondent verbally offered him an appeal against the dismissal decision.  The letter of dismissal does record that the Claimant can appeal.  However, the verbal offers came too late, after the claim had been presented to the Tribunal.  The Tribunal consider that the just and equitable percentage uplift in this case is 30% and record that but for the acceptance from the Claimant that he was offered an appeal the uplift would have been substantially higher.”

25.	It is clear to us that what the Claimant was referring to there was at least as much the reference in the letter of dismissal that he could appeal as the two late oral offers of a right of appeal.  In any event, the Tribunal plainly took into account the fact that those offers, verbally made, came too late.  In our judgment the assessment by the Tribunal of the proportion of the uplift is essentially a matter of their discretion.  There are very very limited circumstances in which this Tribunal can interfere with that exercise of discretion and in our judgment this case falls very far short of being such a case.

26.	Therefore, this ground of appeal fails not only because it is out of time but because it too, upon analysis has no merit.  Thus the appeal by Mr Ahunanya is dismissed and the orders made by the Tribunal at the remedies hearing stand.