Appeal No. EAT/317/91

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 20th November 1991

	Before

	 THE HONOURABLE MR JUSTICE WOOD MC (P)

	MISS J W COLLERSON

	MR G H WRIGHT

	HAMMOND & CHAMPNESS LTD	APPELLANTS

MR J L GRIFFIN	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MRS E R GEARING
Solicitor
Engineering Employers Federation
Broadway House
Tothill Street
LONDON
SW1H 9NQ

For the Respondents	MR J L GRIFFIN
(Respondent in Person)

	MR JUSTICE WOOD (PRESIDENT):  The Applicant Mr Griffin was employed by the Respondents Hammond & Champness Ltd, the well known Company who manufacture and maintain lifts, from May 1981 until 11th May 1990 latterly as a Sales Executive.  The Company employ over a thousand employees.

	It is a sad part of the history of this matter that Mr Griffin has suffered from ill-health over a period of time.  The Company purported to dismiss him with nine week's notice on the grounds of capability namely, his ill-health.  He had been away from work for a substantial number of periods.  

	His Originating Application was heard first by an Industrial Tribunal sitting at Reading on two dates on November 1990 and he succeeded in his allegation of unfair dismissal.  The view taken was that the employers, the Company had not taken sufficient trouble and shown sufficient diligence in examining the background of his health.  The immediate problem at the time they dismissed him was trouble with his knees.  At that time in fact, his heart trouble was not the cause.  The matter was adjourned for assessment of compensation and the compensation hearing took place on the 15th March 1991.  On that occasion the Tribunal having heard evidence made a basic award of £2,208 and a compensatory award of £4,398.  As part of the compensatory award there was a figure for loss of pension rights of £482 and for loss of industrial rights £100 and they also had a figure for £200 for the Company car.  The Company appeal solely against that part of the compensatory award in the sum of £3,000 which was calculated as being a 16 week loss at a net weekly take-home pay of £187.54p that to the nearest pound is £3,000.  It is said that the Industrial Tribunal erred in law in the calculation.  The provision for the calculation of the compensatory award is to be found in Section 74(1) of the Employment Protection (Consolidation) Act 1978 and that reads:
"Subject to sections 75 and 76, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all circumstances having regard to the loss sustained by the complainant in subsequence of the dismissal in so far as that loss is attributable to action taken by the employer."

So the Industrial Tribunal is looking at the loss sustained by the complainant in consequence of a dismissal.  That principle of law had to be applied to the picture as envisaged by the Industrial Tribunal had the Applicant, Mr Griffin, been dealt with "fairly".  Their finding was thus;  they took the view that he would have been unfit throughout 1990 until the beginning of 1991 and in fact he did obtain new employment on the 2nd April 1991. They took the view that had the Company acted as the Tribunal felt it should then there would have been further medical reports indicating that there was a lack of capability and that a notice could have been given, and properly given, to expire at the end of August 1990.  It is important therefore to look at that picture as found by the Industrial Tribunal to see over which period the calculation of loss is to be made.  There is no issue about the nine week's notice, during which of course, Mr Griffin was entitled to full pay, so if one shifts the nine week period forward from the original date of the 9th March 1990, the period of notice under the facts as envisaged by the Industrial Tribunal starts on the 29th June 1990;  thus from that date to the end of August Mr Griffin would have been entitled to full pay.  Of course he had received that period of full pay already, so that period is eliminated from our present calculation.  The calculation therefore, is for the period the 9th March 1990 to the 29th June 1990.  That is a period of sixteen weeks and that is the period at which the Industrial Tribunal calculated his pay as £187.54p and that would be, as we understand it, his full take-home pay.  It seems to us that the point made by Mrs Gearing is a valid one, namely, that having found the period over which the calculation is to be made it is important to calculate
 "the loss sustained by the complainant in consequence of the dismissal so far as that loss is attributable to action taken by the employer"
Those words are quoted from Section 74(1).  Her submission here is that it is necessary to look at that period, to decide what it was that the Applicant would have been paid over that period, during the whole of which of course, he was away sick, because that is his loss if he had been fairly dealt with.

	There are some issues before us,  today as to the correct calculations and it is abundantly clear that it is impossible for us to deal with that matter.  It will require evidence and fresh calculations, but there are difficulties over periods of half pay under the contract, over the sick pay, over periods of invalidity pay as to whether those sums are included in the sums received under the contract.  Their calculations are not agreed and as Mr Griffin has pointed out there may or may not be agreement between the parties, if there can be so much the better.

	The Company out of the total awarded by the Tribunal of £6,606 have already paid the sum of £3,950 but if, and in so far as any further sum is found ultimately to be found to be due no doubt the appropriate interest will be paid.  As the Company is a substantial one we have no doubt, and we hope we are entirely justified in thinking, that whatever is paid, plus interest, will be paid at once when found.

	In the circumstances therefore, we feel that the Tribunal erred in failing to calculate what the actual loss was on the evidence before them and we remit this to the same Tribunal for them to reconsider the basis of what actually was lost by Mr Griffin.  In the meantime, we would hope that it is possible to agree a figure, it would save time and expense.  

	This Appeal is allowed it is remitted to the same Tribunal for a re-hearing.