Appeal No.	 EAT/1024/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 November 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MISS J W COLLERSON
MR D J JENKINS MBE

MR J D BILONICK	APPELLANT

THE UNITED STATES OF AMERICA	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MS S MOOR
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme

	MR JUSTICE MORISON (PRESIDENT):   The purpose of this hearing is to determine whether Mr Bilonick has an arguable point of law in a prospective appeal against a decision of an Industrial Tribunal contained in extended reasons dated 10th August 1995, whereby they ordered the respondent, the United States of America, to pay to him the sum of £2,620.94 by way of a monetary award arising out of his successful complaint of unfair dismissal. That complaint of unfair dismissal had been heard by the same tribunal over, we think, a seven day period extending from August 1994 to, I think, January 1995.

	The notice of appeal which was filed in this case, which has provoked this case to be listed for a preliminary hearing, asserts that the Industrial Tribunal were perverse in a number of respects in the conclusions that they arrived at in the quantification of the monetary award.

	We have had the benefit of argument from Ms Moore from the ELAAS scheme, to whom we are grateful, not just for her help in this case but in all the others she has dealt with this morning.

	The points which she has drawn to our attention in particular in support of this prospective appeal, relates to the first finding that was arrived at by the Industrial Tribunal, that inevitably the employment would have come to an end in any event, even if, that is, the employer had not been unfair, in a period of three months from the effective date of termination.

	They say in their remedies decision that they reminded themselves of paragraph 10 of their decision that the dismissal was unfair, and note that they had said in that paragraph that dismissal, or separation was inevitable and they continue “there is no doubt that, if a fair procedure had been followed, this would have been done fairly and effectively.”

	It is argued that if one looks at paragraph 10 of the previous decision, that was not so much a finding by the tribunal that dismissal was inevitable, but rather a recitation by them of what the employers’ case was. It seems to us that if you look with care at the whole of the decision on liability of the Industrial Tribunal, having regard in particular to paragraphs 10, 13 and 15 to 17, the Industrial Tribunal was fully entitled to arrive at the finding which they had to make one way or another, whether the employment would have come to an end in any event in circumstances not giving rise to a claim for unfair dismissal, and accordingly, whether there was a cut-off point for compensation.

	We think that three months was a decision they were entitled to arrive at having regard to those paragraphs. It might have been better, I think, if they had referred not just to paragraph 10 but to the other matters to which I have referred. But it is to be noted that it was the same tribunal who had fairly recently had a seven day hearing which no doubt was well within their minds, and the decision that they had arrived at was certainly before them on that occasion. It seems to us that there is no merit in the suggestion that that decision by the remedies tribunal was perverse.

	The second finding that is challenged in particular before us by Ms Moore, relates to mitigation. The Industrial Tribunal concluded that he could have obtained employment but at a lesser salary within about a month of termination of his employment with the respondent. It was suggested to us that this was an astonishing and harsh decision, so astonishing and harsh as to attract the label of perverse.

	In anticipation of what we might say in response, Ms Moore urged on us that in fact this fell outside the range of decision that could be arrived at by an industrial jury when considering this point. 

	It seems to us that the Employment Appeal Tribunal should accord on matters such as this a wide margin of appreciation to Industrial Tribunals, and should be slow in coming to the conclusion that the decision of the Industrial Tribunal on a matter such as this was perverse.

	It is a fact that the lay members of  Industrial Tribunals are chosen for the very reason that they have knowledge of the workings of the employment scene and the labour market generally. These tribunals are locally based. We know that unemployment varies from location to location. The Industrial Tribunal members will have general experience of these matters, some members will have particular experience. They will know what the state of the job market is in the Bury St Edmunds area, better, if I might respectfully say so, than we do. In those circumstances I do not consider that the finding was either astonishing or harsh. We are talking about a job attracting a salary of about £8,000 per annum, which was the one they were considering at that time. It would be the experience of the lay members with whom I have the pleasure of sitting this morning, that employment at that level was likely to have been readily available.

	In relation to the second way this is put. It is said that it was unfair and unreasonable of the Industrial Tribunal to suggest that the applicant should so readily have been prepared to accept a reduction in his standard of living, and in his lifestyle. It was said that it is simply unfair to suggest that he should immediately have been prepared to look for a lower graded job than the one that he had previously had had. It was said that no reasonable tribunal could therefore have arrived at that conclusion, and their finding was perverse.

	Again, this seems to us to be well within the margin of appreciation for an Industrial Tribunal. It is precisely that sort of question that they are regularly having to face up to. They had the whole of the employment history at the back of their mind in this case, and the fact, I think, that the applicant in this case had got a ring-fenced salary. In those circumstances, we are not persuaded that it is arguable that there is a point of law fit to go before a full tribunal on the questions at issue, and we have to tell Mr Bilonick that with regret we must dismiss his appeal.