Appeal No. EAT/360/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 10th December 1993

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MR D O GLADWIN CBE JP

	MISS A MACKIE OBE

DERWENT COACHWORKS	APPELLANTS

MR D J KIRBY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR F WEATHERLEY
(Partner)
Derwent Coachworks
Dundas Street
The Stonebow
York
YO12PG

For the Respondent	THE RESPONDENT 	APPEARING IN PERSON

	MR JUSTICE TUCKER:  This is an employers' appeal from a decision of the Industrial Tribunal sitting at Leeds on the 17th November 1992 that the Respondent, Mr D J Kirby, was unfairly dismissed from his employment but that he was at least 50% to blame and awarding him the sum of £4,189 by way of compensation.  That sum was later corrected to £4,078 comprising a basic award of £1,332 and a compensatory award of £2,746.

	The grounds of the appeal are:
		"that the tribunal erred in law in that they did not calculate the award in accordance with the Decision namely that part b of the award amounting to £3,596 was not reduced by 50%."

Part b formed part of and was the starting point for the calculation of the compensatory award.  The figure of £3,596 was arrived at by taking the Respondent's net average take-home pay of £124 per week and multiplying it by 29, the number of weeks making up the period between date of dismissal and date of hearing.  The way in which the Tribunal made their calculations was to adopt the figure of £3,596 as their starting point and then deduct from it the sum of £1,428 which the Respondent had received in lieu of notice so reducing the amount to £2,168 and then to apply the 50% for contributory fault to that figure so as to leave an amount of £1,084 representing the loss from date of dismissal to date of hearing.

	What the Appellants are saying is that the 50% reduction should have been applied to the sum of £3,596 owing but should not have been applied to the sum of £1,428 already paid.  If that had been done the amount outstanding would have been £1,798 less £1,428 = £370 rather than £1,084.  A difference of £714.  So the Appellants submit that the total award should have been £3,375 instead of £4,189.

	The Respondent agrees that a miscalculation has been made but the figure he comes out with is £3,475.  In our opinion he is correct.

	There are three mistakes in the Appellants calculations in their letter of 7th May 1993, at page 3 of our bundle.  First, at c. £3,224 should be £3,324.  Second, the figure £4,803 should be £4,903.  Third, the figure £3,375, shown as the balance, should be £3,475.  Having pointed this out to Mr Weatherley, who appears for the Appellants, he agrees and Mr Kirby, who appears on his own behalf also agrees.  So the correct amount to be awarded is £3,475.

	The parties realised that a mistake had been made.  They sought a review of the Tribunal's decision.  That was entirely the appropriate course for them to take.  It ought not to have been necessary for the parties to have travelled to London as they have done. It ought not to have been necessary for Mrs Kirby and his wife, who has been of great assistance to us to travel from York to London for the hearing of an appeal by this Appeal Tribunal.  It was all capable of being sorted out in Yorkshire.  But despite the holding of a Review;  and despite the parties attending it and pointing out the error in calculations;  the Tribunal either refused to alter their decision or did not understand what they were being told.  It was a simple arithmetical calculation to make but the Tribunal seemed to have been incapable of dealing with it.  This is most unfortunate.  It has put the parties to great trouble and expense. 

	There was an original hearing held on the 17th November 1992 promulgated on the 30th November.  There was an Application for Review, made on the 8th December.  That Review was held on the 22nd March 1993.  There was a Certificate of Correction on the 30th April 1993, which was itself corrected on the 11th May 1993, but despite all that the Tribunal still got it wrong.  The letter notifying this appeal is dated 7th May 1993 in which, as we have pointed out, the Appellants themselves made three mistakes, maybe one of them was a typing error, but two of them were arithmetical mistakes.  The final and correct figure is set out in the Respondent's letter, dated the 26th May, at page 4 of our bundle.  We find it all most regrettable.

	So far as the appeal is concerned, we allow it.  We substitute for the sum of £4,189, alternatively the sum of £4,078 included in the original decision the sum of £3,475.  We propose to mark our view of the case by recommending that the Respondents, Mr Kirby and his wife, be paid costs of £150 out of public funds.  They have behaved reasonably throughout, and it would be unjust if they were out of pocket as a result of what has occurred.