Appeal No.	 EAT/728/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 September 1998

Before
HIS HONOUR JUDGE J HICKS QC
MR R SANDERSON OBE
MRS R A VICKERS

MR D McLEOD-BROWN	APPELLANT

CONCRETE GRINDING LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR T LINDEN
(of Counsel)
Mr D Hill
Legal Adviser
Chequepoint UK Ltd
85 Cromwell Road
London SW7 5BW	
For the Respondents	NO APPEARANCE BY
OR REPRESENTATION
ON BEHALF OF
THE RESPONDENT

	JUDGE J HICKS QC:	The Appellant, Mr McLeod-Brown, was employed by the Respondent, Concrete Grinding Ltd, and was dismissed.  It is not necessary to go into the background facts, because the Tribunal found that the dismissal was unfair and the employer does not appeal against that finding and we are, therefore, concerned only with Mr McLeod-Brown’s appeal against the remedy.  He was deprived of any remedy and he makes two complaints about that.

	The reason for the decision by the Tribunal that there be no compensation was what is commonly called the “Polkey” principle, namely, that on their findings - and their findings of fact in this respect themselves are not challenged by Mr McLeod-Brown - had a fair procedure been followed the dismissal would still have taken place.

	The grounds of appeal are two.  The first is that for that reason the Tribunal not only made no compensatory award - and it is plain, as Mr Linden accepts, that they were entitled to consider that principle in the compensatory award - but they also made no basic award either, and the Appellant contends that that ground for reducing or eliminating an award simply does not apply to the basic award.

	The matter starts with section 112 of the Employment Rights Act 1996, which provides that, where a complaint such as this is well-founded, the Tribunal is first to go into the question of whether there should be an order for reinstatement or re-engagement and then, if there is to be no such order, as there was not in this case, by subsection (4):

“(4)... the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 127) to be paid by the employer to the employee.”

	Section 118 (1) deals with the way in which the award is to be made up and provides that it is to consist of:

“(a)  a basic award (calculated in accordance with sections 119 to 122 and 126), 
and 
(b)  a compensatory award (calculated in accordance with sections 123, 124, 126 and 127).”

And the provision for a compensatory award in section 123 (1) provides that it is to be of:

“(1) ... such amount as the tribunal considers just and equitable in the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.”

	So there is to be an assessment of loss.  It might be supposed that as a matter of simple construction of the Act that loss might be nil, and indeed the authorities make it perfectly plain that it can be nil for various reasons, one of which is the principle to which I have already referred.

	In contrast section 119, dealing with the basic award, provides by subsection (1) that it is to be calculated in a certain way.  There is no reference to the requirement to find any loss.  It is a simple matter of calculation in accordance with the provisions of the section.

	So on the face of it that is plainly a proper ground of appeal and is established but the Respondent, although not present to argue against this appeal, has lodged an Answer and Mr Linden has dealt with the points made there and so do we.

	The first is that (as it is expressed) the whole tone of the decision makes it clear that the Tribunal felt the Applicant was guilty of such conduct that it would be just and equitable to reduce the basic award to nil under section 122 (2) of the Act, and indeed subsection 122 deals with reductions from the basic award and subsection (2) provides that, where the Tribunal considers that any conduct of the complainant before the dismissal (or before notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent the tribunal shall reduce or further reduce that amount accordingly.

	So this was a point which could have been applied in reduction of the basic award.  Mr Linden’s response to that is that is that that point, the conduct reduction point (if I may put it that way), was never argued before the Tribunal and so the Tribunal, on ordinary principles, cannot be supposed to have taken it into account.  In support of that Mr Linden reminds us that there is no reference in the decision to this point, so the Tribunal itself does not purport to justify the deduction on that ground.

	That being so, that response of the Respondent, we accept, is of no effect.  The alternative submission is that the Applicant received a payment from the Respondent equivalent to the basic award, expressed by the Respondent as a redundancy payment.  Although no statutory provision is cited there, that plainly is a reference to subsection (4) of section 122, dealing with another head of reduction from the basic award and providing that it is to be reduced, or further reduced, by the amount of (a) any redundancy payment awarded by the Tribunal and (b) any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy.

	Mr Linden’s answer to that is that on the authority of Boorman v Allmakers [1995] ICR 842, this subsection applies only where the dismissal is by reason of redundancy, which was not the case here.  We have looked at that case.  It is clear authority for that proposition and that answer by the Respondent, therefore, also is to be rejected and the appeal under this head is allowed.

	The amount of the basic award is a matter of calculation and, as we understand it, not open to dispute and there is therefore no need to remit the matter to the Tribunal for that purpose.  If we can be informed what the amount is we can allow the appeal and make that award accordingly.

	The second ground of appeal concerns the failure by the Tribunal to consider the possibility that although, as they found and as is not appealed, the result of a fair procedure would have been dismissal, nevertheless the completion of that procedure would have taken some time - it is not suggested any great length of time, two weeks or so - and that therefore the proper approach is not to reduce the compensatory award to nil but to reduce it to the amount which represents the loss incurred by the bringing forward of the dismissal by that comparatively short period.

	We accept that that, if raised below, would have been a matter that the Tribunal should have dealt with and that, on the authority of Mining Supplies (Longwall) Limited v Baker [1988] ICR 676 it would, on the finding of the appropriate facts as to the likelihood of delay and the likely extent of it, have reduced the compensatory award not to nil but to the amount of loss following from that delay or rather, strictly, following from the fact that the delay did not occur.

	However, Mr Linden was not able to inform us whether this point was taken below, and the decision of the Tribunal is totally silent as to the point, so that if this ground of appeal is good we would have to find, not only that the Tribunal erred in law in the sense of arriving at the wrong result, but that they actually further failed to fulfil their duty of dealing in the decision with points properly argued before them.  Mr Linden’s answer to that is that, although the Respondent does make an answer to this limb of the appeal, that answer does not include the suggestion that the point was not argued below.

	So really this ends up as a question somewhat analogous to one of onus, although we are not concerned with evidence:  are we to assume that the point was taken below because the Respondent does not suggest otherwise, or are we to take the view that an Appellant who comes, making this complaint (which, as I have said, entails not simply the primary error of law in failing to arrive at the right result but also in a dereliction of duty in failing to address the point at all) should not be entitled to do so unless able to inform us that the point was taken below?

	As far as we know, and as far as Mr Linden was able to help us, there is no authority on this point so we have to deal with it as one of first impression and principle and in our view the proper conclusion in such circumstances is that the appeal should not be allowed on that ground.  We therefore dismiss that ground of appeal and need not deal with the answer which the Respondent does give on that point and to which Mr Linden responded.

	In the result, therefore, if we can be told what the basic award was, we shall allow the appeal and substitute an award of that amount.  [Mr Linden informed the Appeal Tribunal that the amount was £420.]  We award £420.