Appeal No.	EAT/637/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 September 1999

Before
HIS HONOUR JUDGE J HICKS QC
MR R SANDERSON OBE
MR R N STRAKER

NORBROOK LABORATORIES (GB) LTD	APPELLANTS

MR C T FULLER	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR I DACRE
(of Counsel)
Cartmell Shepherd
Viaduct House
Carlisle
CA3 8EZ	

	JUDGE J HICKS QC:	The Respondent, Mr C T Fuller, was dismissed by his employer, the Appellant, Norbrook Laboratories (GB) Ltd, and succeeded in his complaint of unfair dismissal.  We need not describe the circumstances because that decision has not been, and is not, the subject of any appeal.

1	There was a Remedies Hearing at which the Tribunal awarded the total of £11,591.96 compensation and basic award, after making deductions in accordance with their findings on the liability hearing of 50 per cent on what is commonly called “the Polkey basis”, that there would still have been a dismissal after a fair procedure, and another 50 per cent on the basis of contributory conduct on the part of Mr Fuller.

2	The compensation is assessed in two parts, first, losses to date and secondly future losses, and it is assessed on the basis that Mr Fuller, rather than seeking alternative employment, had set up business on his own account, and there is no challenge to the Employment Tribunal’s implicit finding that that was a perfectly reasonable thing for him to do in the circumstances.

3	Mr Dacre for the Appellant employer also accepts that in such circumstances reasonable setting up costs are recoverable.  He further abandons a ground of appeal which sought to attack the Tribunal’s award of compensation for loss of statutory rights, because that is undoubtedly a recoverable head of compensation.

4	That leaves five heads of damage awarded by the Tribunal which the Notice of Appeal seeks to attack.  The first is the award for 12 months’ projected loss of earnings and bonus.  That is based on a finding of fact by the Tribunal that it was likely to be another 12 months from the hearing before Mr Fuller’s business became profitable.  It is true that the language of that finding is perhaps grammatically ambiguous, in that it might relate to 12 months from the date of dismissal, or from the setting up of the business, rather than from the date of the hearing, but it is absolutely clear in the context that the period must be the period from the date of the hearing.  That is a finding of fact which involves no question of law and we see no ground on which any appeal could arguably proceed.  Indeed, in one sense that finding is important to the Appellant for its major attack on the other items, because one of the ways in which Mr Dacre puts the case is that the other items, or some of them at least, are duplications or double-counting in that they should not be awarded as well as loss of earnings.

5	That leaves what are numbered items (ii), (iii), (iv) and (v).

6	Dealing first with (iii), (iv) and (v), they are all items for which an award has been made for the period down to the date of the Tribunal hearing by way of setting up costs which, as I have said, Mr Baker accepts are recoverable, but the submission which he makes is that to award them afresh and, indeed, in precisely the same figures, for the future goes beyond the compensatory nature of the award which in law can be made and indeed takes the award beyond the realm of what in the words of the statute is attributable to unfair dismissal.  We say no more than that we consider that that is an arguable point.

7	That leaves head (ii), which is for projected business loss for the future.  Mr Dacre’s submission is that that is also not a loss attributable to the unfair dismissal and, as I have already indicated, that it effectively amounts to double counting for a period during which loss of earnings is already awarded.  The logic of that argument, although the Notice of Appeal does not include the past, extends just as much to the period down to the date of the hearing as to the period after and if, as we believe without expressing any view on the final merits, this is an arguable point, then Mr Dacre seeks and we give leave for an amendment to reflect that fact.

8	Finally, Mr Dacre seeks to raise a point which is not in the Notice of Appeal, but which he says, and we accept, is plainly arguable, namely that the reduction for contributory fault is applied by the Employment Tribunal only to the compensatory award whereas it is, Mr Dacre says, plain on the terms of section 122 (2) of the Employment Rights Act 1996 that it should be applied also to the basic award.

9	The result therefore is that we direct that the appeal proceed on the grounds (and only the grounds) which we have indicated in this judgment, which in two respects involve deletions from the Notice of Appeal and in two respects involve additions to them.  So there will have to be an amended Notice of Appeal reflecting the decisions expressed in this judgment and we direct that that shall be filed and served within 14 days.

10	My colleague points out that there are arithmetical errors in the decision of the Employment Tribunal.  That can be dealt with by application by either party to the Employment Tribunal for a Certificate of Correction.