Appeal No. UKEAT/0366/04/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 October 2004

Before
THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)
MR G LEWIS
MR H SINGH

MR D WALKER	APPELLANT

HEATHROW REFUELLING SERVICES COMPANY LTD & OTHERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR CHANDRA SEKAR
(of Counsel)
Instructed by:
Messrs O H Parsons & Partners Solicitors
3rd Floor Sovereign House
212/224 Shaftesbury Avenue
London WC2H 8PR	
For the Respondent	MR SAM NEAMAN
(of Counsel)
Instructed by:
Messrs Kendall Freeman Solicitors
43 Fetter Lane
London EC4A 1JU	

SUMMARY

Unfair Dismissal / Practice and Procedure

1.	ET concluded by a majority that the Applicant had resigned by a combination of letters of 7 and 10 September.  However, since the ET found that the second letter had not been received by the time the Respondent sent a letter of 11 September ‘accepting’ resignation as at 7 September, and, standing alone, the 7 September letter, which contained no date of termination, was not a resignation (Reality Express), the 11 September letter constituted dismissal; and such decision was substituted by the EAT.  Remitted to the ET to decide compensation, but only on the basis of the ET’s finding that a short further period was required for a fair procedure, and not by reference to delaying dismissal to take into account an alleged possible eligibility for salary continuation.  As the successful argument was not contained within the Notice of Appeal, but emerged from the EAT’s own suggestion, amendment required, and a consequential costs order was made under Rule 34A (2) in favour of the Respondent.

2.	An earlier order for costs reserved was resolved in favour of the Respondent. Tribunals urged not to reserve in such a case.

THE HONOURABLE MR JUSTICE BURTON (PRESIDENT)

1.	This has been the hearing of an appeal by Mr Daniel Walker against the majority decision of the Employment Tribunal at Watford, the Chairman Ms I Manley dissenting, that he was not dismissed by the Respondent Company Heathrow Refuelling Service Company Ltd.  The conclusion of the majority was that the Appellant had resigned and not been dismissed.  The minority, being the Chairman, was of the view that the Applicant was unfairly dismissed.  The Tribunal made no orders for costs.

2.	There is an appeal by the Respondent Company in respect of that failure to make an order for costs, insofar as the costs related to an earlier reservation of costs by a different Tribunal, in relation to the costs incurred by the Respondent arising out of an adjournment of the hearing on 29 July 2002.  Those costs were then reserved over until a hearing in October, and at that hearing on 23 October the same costs were once again reserved over until the full hearing, as it turned out, on 13 and 14 January 2004.

3.	The substantive appeal therefore is by Mr Walker, whom we shall call the Appellant, and the cross-appeal, relating to costs only, is by the Respondent Company whom we shall call the Respondent.

4.	The Appellant had been employed by the Respondent for over 6 years as an Airfield Operator/Refueller.  He became ill by straining his back at work on 30 June 2001, and he was still off work when he wrote a letter on 7 September 2001.  That letter was written to Mr Smitherman of the Respondent and it read as follows:

“On the 4th June 1997 I was involved in a car accident where I sustained an acute musculo-ligamentous strain to my neck.
It has now been firmly established by two Consultant Orthopaedic Surgeons that my chronic lower lumber symptoms [are] attributable to my constitutional problems and [are] severe enough for me to give up work.
From March 1998 I have been under the care of several doctors which have carried out treatment on my back [etc…] … I will still require further treatment in the future to my back, at present I am still taking medication to [relieve] my back pain.
Therefore, due to my constitutional problems relating to the strenuous manual nature of my work my doctor has advised me that retirement is my only option.”

That letter was received by the Respondent at some stage prior to 11 September 2001.

5.	By a further letter dated 10 September 2001 the Appellant wrote again to Mr Smitherman saying:

“Further to previous correspondence on the 7 September 2001.
Due to my severe strain to my back on 30 June 2001 which was caused whilst securing the impute coupling from my vehicle to an airbus aircraft, and taking my doctor’s advice, I am now giving you notice that I shall be [taking] early retirement on medical grounds.”

6.	A separate letter was sent on that same date, namely 10 September 2001, by the Appellant’s doctor, Dr Fairbairn, and that letter concluded, after referring to a ‘road traffic accident’ of 4 June 1997, that he agreed with the Respondent that the amount of sick leave that the Appellant had required over the period was excessive, but that that sick leave had been due to exacerbations of his back pain which in his opinion had been provoked by the kind of work that he did:

“I have been encouraging Mr Walker to consider medical retirement for some time as I feel that attempting to do the job that he is doing with back pain of this nature is unsustainable.  This is why I gave him a prolonged sick certificate as I really do not think he should return to work of this nature in his present state of health.  It is unlikely that his condition is going to improve permanently while he is employed in this way.  In my opinion his level of sickness absence will never return to “the industrial norm”.  His long term prognosis is poor, although it should improve were he able to do a job that did not require constant bending and lifting.”

7.	By letter dated 11 September 2001 Mr Smitherman wrote to the Appellant as follows:

“Dear Mr Walker,
Thank you for your letter of the 7th September 2001.
I am disappointed to hear that you are retiring as at the 7th September 2001 and therefore will not be returning to work.  I have asked for your final salary up to the 7th September, to be calculated and your P45 completed, and you will receive them both shortly.”

8.	The response to that by the Appellant was to thank Mr Smitherman for his letter of 11 September, but to say that he was disappointed that Mr Smitherman had not received the letter he sent on 10 September, informing him that he was taking early retirement on medical grounds and not, as Mr Smitherman had stated in his letter, that he was just retiring from work:

“By now you should have received a medial report from my doctors, stating that my doctors are supporting my application to retire on grounds of ill health.
I will not be needing my final salary to be calculated nor my P45 sent to me, as I am still employed by Heathrow Refuelling Service Company.  As my early retirement is a work-related injury.”

9.	By letter dated 18 September 2001 Mr Smitherman wrote acknowledging the letter of 10 September and saying:

“We do not accept you are retiring on ill-health as a result of a work-related injury.
Of course, it is open to you to give notice to terminate your employment at any time, and this you have done.  Your letter of 10th September confirmed that you do not intend to return to work.
Your are required to give the Company one month’s notice which will expire on the 7th October 2001 and therefore your employment terminates on that date.  As stated in our previous correspondence any monies owing to yourself will be calculated up to that date and forwarded to you along with your P45.”

10.	He was paid up to 7 September, it appears at 50% rate, he having already been at that stage on sick leave since 30 June.  The instructions put before us by Mr Neaman of Counsel today, although not capable of agreement by Mr Sekar because his client was not here, is that thereafter any continued employment would have been on a basis of nil salary.

11.	There is in existence a scheme at the Respondent Company which was referred to as a Salary Continuance Scheme, in a letter sent to employees in July 1998 by the Respondent Company.  That is briefly summarised in an annexure to that letter saying:

“Salary continuation scheme
If you are away from work for a long period due to illness or injury, the Company will continue to pay you at a reduced rate up until your normal retirement age, or return to work, or death, whichever is earlier.
This benefit becomes payable once you have been off work continuously for six months and will be equal to 50% of your pensionable salary (as at 1 January prior to your being off work).”

12.	The actual terms of the policy were not before the Employment Tribunal and are not before us.  All there is in the papers before us is a letter sent by brokers Watson Wyatt LLP to the solicitors instructed by the Appellant in July 2002, for the purposes of the Tribunal hearing, in relation to what might happen if the employment were in some way reinstated as a result of a Tribunal claim, but otherwise answering certain questions.  What Watson Wyatt say in that letter is as follows:

“…Legal & General are only able to consider a claim if a member meets the definition of incapacity as set out in the policy and that the incapacity lasts beyond the end of the 26 week deferral period.”

As we have indicated, it continued:

“Legal & General has advised that they would only consider a claim if Mr Walker’s contract of employment was reinstated by the courts, therefore completing the deferral period of 26 weeks.”

That, of course, was not likely to happen and has not happened, but we mention this letter only because there is obviously a definition of incapacity in the policy, but the policy terms are not before us.

13.	What the Appellant said, before the Tribunal, was that he was not resigning by sending the letters in September 2001; he was asking for consideration for early retirement, having in mind, as he submitted, the possibility of consideration inter alia for the scheme to which we have referred.

14.	The Tribunal made what in the event has turned out to be a significant finding which has not been cross-appealed by the Respondent.  That is that the letter of 10 September 2001 had not been received by the Respondent Company at the time it sent its letter of 11 September 2001.  Consequently, the only letter received by the Respondent when it wrote that letter was the letter of 7 September.

15.	That finding of fact made by the Tribunal had not been anticipated, it seems, by either party.  The arguments that were ranged before the Tribunal plainly were, in accordance with the Tribunal’s decision, as we see it, that the two letters of the Appellant of 7 and 10 September should be taken together.  That was the ambit of the argument; the Respondent arguing that the two letters taken together amounted to unambiguous words of resignation, while the Appellant was arguing that neither of the two letters, either singly or taken together, amounted to unambiguous words of resignation but rather were, at best, ambiguous and amounted simply to the indication of an intention to resign or retire.

16.	The conclusion of the Tribunal is set out in paragraph 9 following:

“9.	The Tribunal considered the evidence in considerable detail.  In particular, the Tribunal read and considered, with great care, the letters which had been exchanged between the Applicant and Mr Smitherman.  It is for the Tribunal to determine whether there was a resignation by the Applicant.  After considerable consideration and discussion, two members of the Tribunal are of the view that the words contained in both the two letters of the Applicant dated the 7 and 10 September 2001 taken together are unambiguous words of resignation which the employer was entitled to treat as such.  They take the view that it is clear from those letters that the Applicant was giving up his employment.  They do not believe that it makes any difference that he used the word “retirement" rather than resigning, and believe that it is significant that the Applicant mentioned the giving of notice. 

Pausing there, it appears to us a conclusion to which the majority of the Tribunal was perfectly entitled to come, given the incorporation in the second letter, that of 10 September, of a reference to giving notice, which the majority of the Tribunal plainly interpreted as meaning contractual notice.  What the majority plainly did not bear in mind was the finding of fact by the Tribunal, to which we have referred, that the letter of 10 September had not been received when the 11 September letter was sent.  The Chairman, however, relies, though only in part, on that aspect for her dissenting decision, as is clear from paragraph 10:

“10.	The Chairman does not take that view.  The Chairman believes that the words the applicant used are indeed ambiguous.  She is particularly of that view because she believes that the use of the word “retirement" particularly when it is used within the phrase "early retirement on medical grounds" does not suggest an immediate intention to leave employment.  The Chairman does not accept that a reasonable employer would have considered the Applicant's letters, especially the letter of the 7 September 2001 alone, upon which the Respondents acted, to constitute resignation [and there is a reference to the fact that it is only the 7 September letter which ought to have been the subject of consideration].  The Respondents replied to that letter and considered the Applicant's employment terminated from that date before they had seen the letter of the 10 September.  The Chairman is lead to the conclusion that the Applicant was dismissed by the letter of the 11 September 2001.  That clearly brings the Applicant's employment to an end or at least it did when he received it which he had clearly done before he wrote the letter of the 13 September.”

17.	In those circumstances, although the Chairman does not specifically point to the absence of the 10 September letter as totally determinative, it is clear that she reached the dissenting view that the central aspect was that the 11 September 2001 letter determined the contract.

18.	The Tribunal very sensibly, particularly as it was a majority decision, did not leave it there in reaching conclusions as to the outcome of the case.  We very often find ourselves encouraging Tribunals to go on to deal with all aspects of the matters that are before them, particularly in circumstances in which there is the possibility of an appeal.  It very often saves costs.  It certainly is of great convenience to any appellate tribunal, and it sometimes leads to settlements which might otherwise not occur.  The Tribunal in this case did exactly that, because, although by a majority it had decided there was no dismissal, it then went on to make specific findings as to what would be the case if there had been a dismissal:

“11.	The whole Tribunal went on to consider the question of whether if there was a dismissal, whether that dismissal was likely to be fair or unfair.  For the reasons given, the majority do not accept that the Applicant was dismissed.  However, the Tribunal as a whole agreed that if the Applicant had been dismissed the reason for the dismissal was a potentially fair reason of capability.  Given the complete lack of any procedural safeguards with respect to the letter of the 11 September 2001 the Tribunal unanimously agreed that, if there had been a dismissal, it would be an unfair dismissal.  However the Tribunal also decided that, on the evidence before it, that, if there had been a fair procedure, dismissal would have occurred in any event as the Applicant could not carry out work for the Respondents.  If we had gone on to decide remedy, therefore, this would have reduced any compensation payable to the Applicant or limited it to a period of time for a fair procedure to be followed.”

There was no cross-appeal by the Respondent in this regard.  There was no appeal by the Appellant.  The Tribunal then went on to deal with questions of costs, to which we shall return.

19.	The appeal by the Appellant was put on the basis of three grounds, none of which supported the minority member’s conclusions that, in her words, it was the 11 September letter which had determined the contract.  The first ground read as follows:

“The Tribunal erred in law in finding that the Applicant was not dismissed in that the words used in his letters of 7 and 10 September 2001 did not constitute a resignation, rather an attempt to retire on medical health grounds (for which the Applicant could claim a benefit from the employer) supported by medical evidence and therefore there was no question of whether he was resigning or not, nor whether his words could be ambiguous.”

There is no doubt about that, insofar as it is particularised at all.  That is a repetition of the case that was made by the Appellant below, namely that the 7 and 10 September 2001 letters, taken together, were not a resignation, were not ambiguous.

20.	The second ground read as follows:

“Further and in the alternative, the Tribunal erred in law in failing to consider that where there are special circumstances, or circumstances which should put an employer in notice that a purported resignation may not have been the continuing and reasoned contention of the employee, he should give an opportunity to the employee to reconsider the purported resignation and that the opportunity was not given, notwithstanding the employee’s position throughout that he had not resigned (Sothern v Franks Carlesly & Co [1981] IRLR 278, CA, Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156).”

21.	That is plainly a ground based upon an alleged failure by the Tribunal, on the assumption that it had found that there was unambiguous resignation by the employee, to apply the doctrine of special circumstances, which are referred to in some cases where an employee who has made an unambiguous act or statement of resignation can in certain circumstances be freed from it by a full consideration of the context.

22.	The third ground was said to be based upon Meek v City of Birmingham District Council [1987] IRLR 250, that on the totality of the evidence received by the Tribunal on matters relating to the question before them the Tribunal erred in law in failing to give adequate and intelligible reasons for its decisions.  It is in this regard only that the Appellant makes reference to the reasons given by the learned Chairman.

23.	There was an attempt to amend the Notice of Appeal by side wind, namely by inclusion of a paragraph 10, again by amendment, into the Skeleton Argument that was served recently by the Appellant in support of his appeal.  As we have indicated, that was not expressly an application for permission to amend the Notice of Appeal, and it appeared only by purported amendment even of the Skeleton Argument in support of the appeal; but it read as follows:

“It is further submitted that an employer is in fact estopped by an implied term of the employment contract that while a person is on long-term sick leave he will not be dismissed (save for summary dismissal) where to do so would deny him the benefits of his employment, including pensions, salary continuance scheme, early retirement schemes and the like (Aspden v Webbs Poultry & Meat Group (Holdings) Limited [1996] IRLR 521).  It is submitted that this applies equally to an employer purporting to accept a resignation without enquiring if this is what the employee is actually saying and whether the employee wishes to deny himself potential benefits which would accrue were he to remain employed where it must be in the employer’s knowledge that this is the case.”

24.	A notice was served by the Respondent objecting to that amended paragraph in the Skeleton Argument, as not only not being before this Court by virtue of its absence from the notice of appeal, but also not having been the subject matter of any argument below in accordance with the well-known principles in Kumchyk v Derbyshire City Council [1978] ICR 1116.  That ground, though plainly both those assertions by the Respondent were correct, was limited to putting forward an additional argument why the majority finding on liability was wrong and why in consequence the letters of 7 and 10 September 2001 should not be seen as resignation letters.

25.	When this Tribunal had the papers delivered to us, it appeared to us that there were questions which arose out of the papers, which I formulated in an email, which was sent to both Counsel on 4 October (last week) and the email read as follows:

“The attention of both Counsel is drawn to the following:
1.	to the line of authorities commencing with Morton Sundour Fabrics v Shaw [1967] ITR 84 and most recently represented by Reality (White Arrow Express) Ltd v O’Hara EAT/0447/03, which were apparently not drawn to the attention of the ET.”

Those two cases, we interpose, are cases which indicate that, without the express or implied incorporation of a date of termination, a resignation, or indeed a determination by the employer cannot be effective in terminating the contract, but will be more likely to be interpreted as being an intention to dismiss or resign.  We then continued by way of questions:

“The following questions appear to us to arise for your consideration:
(i)	Given the absence of a date in the letter of 7 September, was its effect ambiguous when ‘accepted’ by the letter of 11 September, with termination as at 7 September?
(ii)	At the time of the new ‘acceptance’ of 18 September, of termination as of 7 October, was the original letter of 7 September, ambiguous or otherwise, still open for acceptance in the light of the letter of 13 September?”

26.	We then added a further paragraph, with a view to seeing whether, on the basis of proportionality, the parties might like to consider that, in the event of success of the appeal not much was at stake, on the basis of the findings by the Tribunal in paragraph 11 by stating the following

“2.	If there was dismissal (and if the appeal were to be allowed) the unanimous conclusion of the Tribunal was that compensation would be in a small amount – see paragraph 11 of the Decision.”

27.	We had in mind, although of course this was only a conditional view, that the Respondent might, in the light of that way of putting the case which did not appear to us to have been previously considered, take a view as to the likelihood of the appeal being successful; while the Appellant, albeit thus encouraged by the prospect of success of his appeal, might be reminded that success would, on the basis of the decision of the Tribunal, not bring him in very much compensation.

28.	The email did not lead to any settlement of the case for reasons which will become apparent in a moment.  However, what it did lead to was an early concession by the Respondent, in response to the Tribunal’s questions, that the letter of 7 September on its own could not constitute, and was not, a resignation, for the reasons set out in my email, and the case law cited therein.  That was the explanation, it now is clear, why such authorities were not referred to before the Tribunal, namely that the 7 September letter did not contain a date because it was never being contended for by the Respondent that the 7 September letter on its own could constitute a resignation.  What was being contended for by the Respondent was that the 10 September letter, by reference to notice, made good the omission in the 7 September, letter and that was the case which was put forward by the Respondent, which contention of course had only been rendered unarguable by the finding of fact which the Tribunal in the event made.
29.	But the Respondent pointed out - and continued to point out through Mr Neaman in the opening of his submissions before this Tribunal - that the way in which this Appeal Tribunal had put the case in its questions was not the basis of the Notice of Appeal by the Appellant.  The Appellant, by Mr Sekar, responded to the email, and adopted the way in which the case was put implicitly by virtue of this Tribunal’s questions, both in his response and orally before us.

30.	But it quickly became apparent, and in the event, if not conceded, was all but conceded by Mr Sekar, that indeed the way in which the case was now to be put by him, in adoption of that implicit suggestion by this Appeal Tribunal, was not the basis of any of his three grounds of appeal.

31.	His short submissions in opening, cut short by his adoption of what was coming from this Tribunal, were on the basis of an implicit application to amend, which resulted in his acceptance of a formulation by this Tribunal in the course of his reply.  That formulation is as follows:

“The [majority of the] Tribunal erred in law in failing to conclude that the letter of 7 September 2001 was not a letter of resignation and that, as it was the only letter before the Respondent when its letter of 11 September was sent, in law the 11 September letter terminated the contract.”

32.	Once that amendment, permission for which we grant, was made, it was apparent that the Respondent would have, and indeed through Mr Neaman did have, no defence to this appeal.  We allow the appeal on that basis.  But the consequences of allowing that appeal had still to be followed through.

33.	The first consequence which falls to be considered is that Mr Neaman submits that in the light of the new Rules, the Employment Appeal Tribunal (Amendment) Rules 2004, in force as from 1 October 2004, whatever may be the other powers of this Employment Appeal Tribunal in relation to costs, now has an express power by Rule 34A (2), as follows:

“The Appeal Tribunal may in particular make a costs order against the paying party when:
…
(b)	he has amended his notice of appeal.”

34.	Mr Neaman submitted that, without the amendment, the appeal would have failed.  He further submitted that, without that amendment, the Notice of Appeal was bound to fail, i.e. that it was misconceived or unreasonable to have pursued the appeal on the basis of the unamended Notice of Appeal, such that had it been so pursued, and but for the amendment, he would have been entitled to his costs of the appeal pursuant to the amended Rule 34A (1) of the Rules.  But if that were not the case, in any event he sought the costs pursuant to 34A (2) (b), which we have recited.  He, at all material times, was facing a Notice of Appeal containing the three grounds to which we have referred, which, although, as he submitted, he was extremely confident of defeating, required to be dealt with.  There was a lengthy agreed bundle of authorities, including consideration of the cases on special circumstances and on ambiguity, and lengthy Skeleton Arguments exchanged.  Had this ground been included - not simply by virtue of any thoughts this Tribunal might have had, but by virtue of what was there to be gleaned from the original minority decision - then the Respondent would have had a much less expensive task in taking part in the appeal, because it would not effectively have contested the appeal, but would only have been here in order to pursue its cross-appeal.

35.	We are satisfied that the proof of the pudding as to what the Respondent would have done was in the eating, namely by virtue of the almost immediate concession by the Respondent, and the limit of its opposition to the appeal to the point taken, that that ground did not appear in the Notice of Appeal.

36.	We are not prepared to say that this is a case in which the appeal brought against the majority decision on the grounds that were cited was misconceived or unreasonable or bound to fail, but it certainly is an appeal which we are satisfied would have failed, and we also accept the submissions made by Mr Neaman that had the Notice of Appeal included the new amendment from the outset, the Respondent would have incurred less costs in taking part in the appeal proceedings.

37.	It is apparent also that there has been a much lengthier hearing today, not least because it has taken nearly a full day (it is now 5.30 in the evening, although there was a short hearing of another matter this morning) to resolve matters which would otherwise, we are satisfied, have gone far shorter.

38.	We propose to assess a sum of costs payable by the Appellant in respect of the grant of the amendment and the consequent allowance of the appeal based upon that amendment.  We are now required by the new Rules to consider the means of an Appellant in such circumstances, by amended Rule 34B (2) the Appeal Tribunal may have regard to the paying parties’ ability to pay when considering the amount of the costs order.

39.	We do have regard to that ability to pay in two respects:

(1)	As a result of the allowance of the appeal an award of at least £2,520, being the basic award, will now be payable to the Appellant.

(2)	The Appellant is supported by his Trade Union in this regard, meaning that the Trade Union has provided the costs of his representation.  We are told that in relation to Employment Tribunal cases the Trade Union has never to date been called upon to meet the costs of the opposing party in respect of an order for costs made against its member, because that has not arisen.  But, Mr Sekar accepted, on instructions, that in relation to High Court proceedings, where of course costs are a much more lively issue, and arise much more regularly where claimants fail, in practice the Trade Union does pay any costs ordered to be paid by its member to the Respondent.  We have not seen a copy of the Trade Union’s Rules and therefore we make no assumption that the Trade Union will in fact pay these costs if they are awarded against the Appellant, but we very much hope, not least because the fault in relation to a late addition to a Notice of Appeal, if fault there be, is certainly none of the Appellants’ personally, that the Trade Union may be prepared to be responsible in respect of such costs.

40.	In the light of those considerations we make an order to assess the costs by way of contribution to the costs incurred by the Respondent of £1,250.

41.	The second question which falls to be considered is the consequence of our allowance of the appeal.  We are entirely satisfied that this is a case in which (and Mr Neaman has not resisted this suggestion) we should substitute our own conclusion that there was dismissal of the Appellant by the letter of 11 September.  The 10 September letter not having been received, and the 7 September not being contended to be a resignation, the only consequence is that, whatever the employers thought they were doing on 11 September, they were in fact terminating the contract and dismissing the Respondent.  Consequently, in the light of the unanimous finding of the Tribunal, that dismissal is unfair.

42.	We are entirely satisfied, contrary to the submissions of Mr Sekar, that we are entitled and obliged to take notice of the unanimous decision of the Tribunal, not only in relation to that finding, which is of course in his favour, namely that, if there was a dismissal, it was unfair, and that the reason for the dismissal was a potentially fair reason of capability, but also by reference to the balance of the conclusions of the Tribunal, set out in paragraph 11 of the Tribunal’s Decision, which we have read.

43.	Mr Sekar sought to amend his Notice of Appeal by an unformulated ground, which he did not have available to put before us, taking much further than it originally stood, and transforming, the also unformulated ground which had been adumbrated in his amended Skeleton Argument, to which we have referred.  He sought, in the light of his reaction to our email of 1 October, to which we have referred, at paragraph 2, indicating that the finding of the Tribunal, in the event of a successful appeal, was that the compensation would be small, to put forward a case which he summarised, in his answer to that paragraph in our email, in his written submissions of 5 October as follows:

“…the question of the compensation payable is at large and is, at the very least if Aspden is followed, the sick pay until the qualifying period [that is qualifying period under the Salary Continuance Scheme] was met.”

the suggestion being that the Tribunal would or should have found that the Appellant would be entitled to have remained in employment, and be compensated for unfair dismissal, on that basis until the triggering, if it was to be triggered, of the Salary Continuance Scheme, i.e. 29 December 2001, six months after he had started his sickness leave on 30 June.

44.	Mr Sekar’s submissions continued as follows:

“It is further pointed out that the background to the case is that Mr Walker wished, and wishes, to make a claim on the Salary Continuance Scheme and its concomitant the Company Pension Scheme.  As such the potential loss to Mr Walker is of the order of hundreds of thousands of pounds.  The Employment Tribunal failed to consider whether he would be able to claim payments under that scheme as being monies owed from, or arising out of, his contract of employment.  It also failed to make reference to the fact that the insurers had been contacted and their position was that they would consider a claim if the contract of employment was reinstated … thereby permitting or deeming Mr Walker to have completed the qualifying period.”

45.	It is plain that that was a submission which at the very least required an amendment to the Notice of Appeal but none, as we have indicated, was forthcoming.  We nevertheless heard submissions from Mr Sekar in relation to the possibility of his making such an application.  It would clearly have been one in which he was faced by great difficulty.  The first would have been the timeousness of the application for amendment, namely only on the day of the hearing to add such a fundamental new argument.  The second would relate to the fact that it was not, and plainly not, argued below.  Aspden was not cited at all, even in support of the supplemental argument on liability which, by virtue of the amended Skeleton Argument, he would have wished to have run, and certainly not by reference to the expanded claim for compensation, to which we have referred.

46.	The Kumchyck principle is well established in this Employment Appeal Tribunal in order to prevent re-litigation, second thoughts and second bites at the cherry, and to emphasise that it is the Employment Tribunalm, as the industrial jury, which is vested with the jurisdiction to resolve disputes between the parties; but there can be exceptions to the Kumchyk principle as has been clear from other cases.  They are, however, very limited, as the Court of Appeal itself has made clear and approved on many occasions; first there can be such an exception if the point is one of law; secondly, even if there can be rare circumstances in which points other than points of law can be raised which had not been raised before, they will be limited to points where no additional evidence is required.  To allow an amendment of this kind would have offended against those principles.  In the event Mr Sekar decided not to make an application for amendment.

47.	There was a mention by Mr Neaman also of a potential amendment by way of amending his cross-appeal, which he put forward, perhaps with greater substance, because he submitted it arose out of, or as a consequence of, the late amendment of the Notice of Appeal, whereby he would seek to argue that any compensation would be limited to a 4-week period from September 10, on the basis that the Tribunal did not expressly refer in paragraph 11 of its Decision to a submission that in any event, even though there was dismissal by the letter of 11 September, the Appellant’s employment would have terminated pursuant to what the majority of the Tribunal found to be his notice, albeit that in fact it had not been received before the termination of 4 weeks from 10 September.  In the light of matters to which we will refer, Mr Neaman too did not pursue his application for amendment of the cross-appeal.

48.	Against that background, we turn then to the consequence of allowing the appeal.  Mr Neaman submits that there is no call for this matter, upon proportionality or any other grounds, to be sent back to the Employment Tribunal.  The Employment Tribunal plainly concluded that the only period of time that was to be provided for in relation to the consequence of the unfair dismissal was a period of time for a fair procedure to be followed, rather than one which was foreshortened by what they described as the complete lack of any procedural safeguards with respect to the letter of 11 September 2001.  If this were a period of 4 or 6 or even 8 weeks then that would not carry any compensation, because after 7 October (until which time he was paid) the Appellant would have been on nil salary in any event, as a result of the fact that he had exhausted the period of 50% salary on his sick leave.

49.	It was for that reason that Mr Neaman decided not to pursue his application to amend the cross-appeal.  His case was that if the matter was sent back to the Tribunal the Tribunal would inevitably only award the basic award, and that any relevant further period would not result in an award of compensation.

50.	Mr Sekar resisted this on two grounds.  The first ground he did not raise until we raised it with him, just prior to giving this decision, namely that he was not in a position to accept, his client being absent, that an extra 2, 4 or 6 weeks would have resulted in nil compensation.  He submitted that there might be some benefits lost as a result of an extended period on his contract.

51.	The second ground is more far-reaching.  He submits that, if this matter is remitted to the Tribunal within the confines of paragraph 11 of its Decision, it would have the possibility of awarding a sufficient period, such as to take the Applicant into a potential eligibility under the Salary Continuance Scheme.

52.	He did not pursue, as we have indicated, his submission that he should seek an amendment of the Notice of Appeal arising out of the passage which we have quoted from his Skeleton Argument, namely: 

“The Employment Tribunal failed to consider whether he would be able to claim payments under that scheme as being monies owed from, or arising out of, his contract of employment.”

53.	His submission for this purpose was as follows, namely “in analysing what period of time was required for a fair procedure to be followed” (we quote from the relevant sentence of the Employment Tribunal’s Decision), on the particular facts of this case, a fair procedure would include consideration of potential eligibility for the Scheme, and might therefore have resulted in a period which would enable the Appellant to claim under it.

54.	We have already indicated that we have no clear picture as to what the Appellant’s eligibility under the Scheme would be.  If the position were that, in order to qualify for the Scheme, the Appellant would have to show that he was unable to work, then the evidence before us which was before the Tribunal would not support such a position; the letter of 10 September from the Appellant’s doctor being limited to a conclusion that he was no longer able to carry out the job he was doing for the Respondent, and indeed positively suggesting that some other different light job in some other employment might have been something that he would be able to do.  If in fact incapacity of any kind were necessary for qualification for the Scheme, then on any basis this Appellant would not qualify for that Scheme.

55.	It is obviously, quite apart from that, an extremely far-reaching suggestion that an employer faced with the dismissal of an employee who is no longer able to carry out his work, in whose contract of employment there is a deferred salary continuance scheme such as this, must keep such person in employment until he qualifies for the Scheme.  We know of no authority which supports that proposition, save possibly the Aspden case to which the Appellant has referred.

56.	But we are, in our judgment, entirely entitled, and obliged, to look at the conclusion that the Tribunal reached, particularly given that this aspect in any event was not argued before it.  The Tribunal in concluding, or in describing what was left for them to do in paragraph 11 of the Decision said (and we remind ourselves what they did say) this:

“If we had gone on to decide remedy, therefore, this would have reduced any compensation payable to the Applicant or limited it to a period of time for a fair procedure to be followed.”
57.	It appears to us quite plain that the Tribunal did not have in mind that by expanding the period to be considered to allow for the following of a fair procedure, that period might lead to an expansion of the compensation, payable whether as to ‘hundreds of thousands of pounds’ or to £55,000, being the limit of the unfair dismissal compensation in Employment Tribunals.

58.	We are satisfied that the finding of the Tribunal was limited to what period would be required for a fair procedure and a fair procedure, means one in which the employers gave adequate consideration to whether in fact this employee was unable further to carry on his work, rather than simply sending off a speedy response terminating his employment.

59.	We are satisfied that we are not in a position to, and do not, remit this matter to the Tribunal to include in its consideration the issue of, whether by a side wind or indirectly or even directly, the Appellant could pick up compensation for loss of opportunity to enter into the Salary Continuance Scheme by way of unfair dismissal compensation in a Tribunal, whatever an Appellant might be able to do in some other court.

60.	In those circumstances, but for Mr Sekar’s first point, we would not have remitted the matter to the Tribunal, and would have made an award of compensation by way of the basic award, which we understand to be £2,520, and been satisfied that whatever period of time the short period of time the Tribunal allowed for the following through of a fair procedure, it would not have led to any compensation for the Appellant, because any extension of his employment would have been on nil salary.  However, we respect Mr Sekar’s need to take instructions as to whether indeed it is the case that nil salary would have flowed in respect of some short further period and/or nil loss of benefits.

61.	We therefore do remit this matter to the Employment Tribunal, for consideration of what compensation flows as a result of paragraph 11 of its Decision, but such compensation will be limited to a short period of time to allow for the carrying through by the Respondent of fair procedures, and will not take account of the possibility of the triggering-in of the Salary Continuation Scheme.

62.	We do put the Appellant and his advisers on notice that, if they discover that there are no benefits lost and no remuneration lost, they should immediately notify the Respondent and enable the matter to be closed without further proceedings; and indeed that if there is some small sum the opportunity is given to agree and pay it, but that there must be a risk of costs if the Appellant restores this hearing before the Tribunal, unless there is some substantive claim to which he has been unable to get the Respondent to agree.

63.	We turn finally to the question of costs arising out of the order of 29 July 2002 adjourning the hearing which was fixed to take place on that occasion.  We must begin by saying in the plainest possible terms that we very much regret that the Employment Tribunal on that occasion reserved the costs rather than deciding it themselves.  It was plainly a discrete question.  The Tribunal was convened ready to hold the full hearing of this unfair dismissal claim on 29 July 2002.  The Appellant sought an adjournment.  The Respondent did not oppose that adjournment on the basis that costs were paid, and put forward a powerful case as to why costs of the adjournment should be paid.

64.	So far as costs are concerned, in the Employment Tribunal, even before the amendments which have now occurred, there was power, irrespective of any finding of misconduct, unreasonableness or any other relevant epithet, to award costs pursuant to Rule 14 (4) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, namely:
“Where the tribunal has on the application of a party postponed the day or time fixed for or adjourned the hearing, the tribunal may make orders … against or, as the case may require, in favour of that party as respects any costs incurred or any allowances paid as a result of the postponement or adjournment.”

65.	It was, in our judgment, a discrete question as to whether it was appropriate for the Respondent to have some costs arising out of the adjournment.  It was in no way tied into the merits of the eventual decision, and, in our judgment, the Tribunal should have decided costs then.  They would have been able to do so in a matter of 5 minutes, whereas it has taken us a considerable period of time to resolve the issue now.

66.	It is similarly unfortunate that, when that Tribunal adjourned the matter to 23 October 2002 the question was reserved once more.  The matter then came before the Employment Tribunal on 13 and 14 January 2004.

67.	In its conclusions in its Decision it is clear to us that the Tribunal erred in two respects:

(1)	There was no mention at all of the relevant Rule, Rule 14 (4).  It appeared to be considered by the Tribunal that unreasonable behaviour was required in order to make a costs order as sought by the Respondent.

(2)	It appears to have influenced the Tribunal that the Respondent was said to be in some way in breach of obligation by not having disclosed until 26 July, the Friday before the hearing on 29 July, in a witness statement, the matters which allegedly led to the need for an adjournment.

68.	Those matters were in a witness statement, filed on that day by Mr Smitherman, being an explanation that the Respondent had ceased trading on 1 May 2002, some 9 months after the dismissal of the Appellant, and that a joint venture had taken matters over.  It is entirely clear to us that that was not a matter which the Respondent was required to disclose any earlier; indeed it is rather unnecessary for them to have disclosed them at all, in our judgment, and their enclosure in a witness statement is what seems to have prompted the adjournment.  But, leaving aside any alleged late disclosure, it is simply the fact that that was a late witness statement, and the fact that the Appellant sought an adjournment based upon its content; and if in fact the adjournment was sensible and well-founded then, although there would be no criticism of the Respondent for the late disclosure, the late disclosure would have led to the adjournment, and consequently they would not be entitled to recover costs.

69.	The adjournment was necessary, in our judgment, not only because the Appellant was asking for one in order to join 6 new Respondents arising out of what it saw to be the position disclosed by the witness statement, but also because the Appellant was seeking to add a claim for disability discrimination which, on any basis, would have led to the need for an adjournment, although the Appellant himself did not ask for an adjournment on that basis.  No explanation has been put forward by Mr Sekar on behalf of the Appellant for the late addition of the disability discrimination claim.

70.	So far as the addition of the Respondents are concerned, they were subsequently added, but very shortly before the full hearing in January the claims against them were not pursued.  So far as the disability discrimination claim is concerned, that too was formulated but it was struck out at the directions hearing on 23 October 2002.  So far as the disability discrimination claim is concerned, it is not a matter of relevance that it was subsequently struck out, but it is certainly relevant that it was so belatedly added.
71.	As for the joinder of the other Respondents, we encourage the joinder of other Respondents at Employment Tribunals where there is any risk that the existing Respondent is either not properly joined, or even is properly joined but may be insolvent, in circumstances in which there are other Respondents who may be proper targets.

72.	It is quite clear to us, however, that there was no conceivable justification for considering joining these Respondents.  The only basis of a case that was put forward on 26 July in the witness statement was that, 9 months after the dismissal they had become involved, by virtue of some joint venture.  Albeit that there may have been some concern that the existing Respondent might have become insolvent as a result, there could have been no proper consideration that this was a TUPE claim, or that any claims which might have existed in the Appellant’s favour would, by virtue of TUPE, have been transferred from the Respondent to these new joint venturers.

73.	In any event, the late application for an adjournment does not fall within the encouragement of caution by this Appeal Tribunal, to which we have referred.  The consequence of the late joinder, the consequence of the late addition of the disability discrimination claim, was the adjournment, and in our judgment the Appellant must pay for that.

74.	However, it is quite plain that there is no question of payment for the entirety of the case or anything of that kind.  It is the cost arising out of the adjournment of the hearing, which was attended by and prepared for by a solicitor and attended by a witness of the Respondent.  Plainly the nature of the preparations of the case were not wasted, because eventually the case came on for hearing.  But there were plainly wasted costs.  Mr Neaman has put his claim at some £1,500.  We are satisfied that the appropriate sum is £500 by way of contribution towards the wasted costs by the Appellant.

75.	Our orders therefore are to allow the appeal, to remit the case to the Employment Tribunal, for the limited purpose of considering, in the light of paragraph 11 of its Decision what further period would have been required for the carrying through by the Respondent of a fair procedure and the arrival at a sum of compensation as a result; but we have indicated that further hearing should only take place if the Appellant appreciates that he is at risk as to costs, if it turns out that that sum is, as the Respondent asserts, nil for the reasons that we have given. 

76.	We order that we grant leave to amend the Notice of Appeal before us, but that the Appellant pay the Respondent the sum of £1,250 as a contribution towards its costs by virtue of that amendment, and we order that there be a sum of £500 paid in respect of the wasted costs of the adjournment on 29 July 2002.  There is a stay in respect of both those orders for costs until the compensation is calculated, and it will then be set off against that compensation, although, as we have indicated, we hope that there may be different arrangements made in respect of the payment in the light of our judgment.

77.	We substitute a conclusion that the dismissal of the Appellant was on 11 September.