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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hince v. Cottee & Anor [2000] UKEAT 329_00_1210 (12 October 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/329_00_1210.html Cite as: [2000] UKEAT 329__1210, [2000] UKEAT 329_00_1210

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APPEARANCES

 

For the Appellant	MR E COPPINGER (Representative) Instructed By: Hounslow Law Centre Ltd 51 Lampton Road Hounslow Middlesex TW3 1JY


 


MR JUSTICE CHARLES: This appeal comes before us today by way of preliminary hearing pursuant to this Tribunal's Practice Direction. It follows that the task of the Appellant is to satisfy us that the appeal raises a reasonably arguable point of law.

1. The Appellant is a Miss June Hince, the Respondents are a Ms Cottee and a Ms Walker who trade, presumably in partnership, under the name Rushes. The Appellant was employed by the Respondents as a van driver delivering flowers in connection with their business.
2. The subject matter of the appeal is part of the decision of an Employment Tribunal sitting at London (North) on 10 January 2000. That part relates to the quantification of the compensation that the Employment Tribunal ordered should be paid to Miss Hince for unfair dismissal. In short the Employment Tribunal found in favour of the Appellant (Miss Hince) on liability; there is obviously no appeal against that by Miss Hince, what she appeals against is the quantification of the compensation.
3. At the Employment Tribunal Miss Hince was represented by a Solicitor. Today we have been told that that was someone from a Free Representation Unit. The Respondents were represented by one of the partners, Ms Walker. Today Miss Hince has been represented by a representative of the Hounslow Law Centre who provided us with a skeleton argument before the hearing commenced. We are grateful for that and we are grateful also for the submissions made on behalf of Miss Hince.
4. The Extended Reasons of the Employment Tribunal were sent to the parties on 21 January 2000. The most important paragraphs of those Extended Reasons, for present purposes, are paragraphs 9 and 10 and a small part of paragraph 11. Those paragraphs are in the following terms:

"9 Having considered the evidence of Miss Hince and the submissions made on her behalf and by Ms Walker on behalf of the Respondents, we conclude that Miss Hince was successful in obtaining employment in a similar type of business within a month of having been dismissed and although the job may not have been quite as attractive as that which she was doing for the Respondents, we do not think that it was correct for her to have resigned as she did within a week of commencing the employment without giving it a greater chance to see whether she could adjust to the work and the employer take on additional assistance to ease her burden. An employee is under a duty to mitigate her loss and we do not consider that the Applicant did everything within her power to mitigate it when she resigned from the job at Blooms. We therefore limit her loss of earnings from the date on which she was dismissed until the date when she commenced employment with the new employer.

10 Miss Hince was earning £200 per week gross at the date of dismissal and this approximated to £160 per week net. When she was taken on by Blooms she was offered £4 per hour cash in hand which on an average 40 hour week would equal £160. Coincidentally this is the same amount as her take-home pay from the Respondents.

11 Compensatory Award

Loss of wages from date of termination until 21 June 1999

(the date of commencement or re-employment with Blooms)

say 4 weeks @ £160 per week Total: £640."

5. The appeal relates to the Compensatory Award and the conclusion reached by the Employment Tribunal in respect of mitigation. As to that the relevant statutory provisions are sections 123(1) and (4) of the Employment Rights Act 1996. Subsection (1) provides:

"(1) Subject to the provisions of this section and sections 124, 126, 127 and 127A(1), (3) and (4), the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all 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."

and sub-section 4 provides:

"(4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales …"

6. All that is fairly standard stuff, as the representative of Miss Hince pointed out to us during submissions. It is material which Employment Tribunals deal with day in, day out and where their expertise as the "industrial jury" comes into play.
7. In the skeleton argument that was presented to us and orally, reference was made to the case of Fyfe v Scientific Furnishings Ltd [1989] ICR 648, to establish the proposition, which we accept, that the onus in respect of mitigation is on the employers. Where we part company from the argument advanced on behalf of the Appellant is that that does not mean that the fact that the Respondent employers either did not give any evidence, or the Employment Tribunal do not refer to their evidence, means that the decision of the Employment Tribunal is flawed.
8. It is quite apparent from the beginning to paragraph 9 that Miss Hince gave evidence, in pursuance of her duty to provide information on the issue of mitigation and that submissions on mitigation were made both on behalf of Miss Hince and on behalf of the Respondents by Ms Walker. The issue of mitigation was therefore full square before the Employment Tribunal and, in our judgment, nothing turns on an issue of onus of proof.
9. During the course of submissions we were also referred to the decision of the Scottish Appeal Tribunal in Wilson v Gleneagles Bakery Ltd, Lord Mayfield presiding, which makes the point which I can take from the headnote:

"An employee will act to mitigate his loss by finding a new job. If he cannot cope with the work, the job will not be suitable for him and he will not act unreasonably in leaving. In such circumstances it will be wrong to treat his resignation from the new job as a failure to mitigate his loss."

10. We would accept that. In our judgment it is an assessment of what is, or is not reasonable and essentially a finding of fact which it falls to Employment Tribunals to make. In this case it seems to us, standing back from the Extended Reasons and not applying a fine tooth comb to their language, that the Employment Tribunal had put before it the issue of mitigation and it heard the evidence of Miss Hince on that matter. It concluded that, having found a job that was relevant as to the issue of mitigation, in giving up that job Miss Hince was failing to mitigate her loss. They therefore concluded that the compensatory award should be calculated up until the date she took that job.
11. In our judgment, the remainder of the submissions that were made to us on Miss Hince's behalf raised issues of fact or their evaluation rather than issues of law. Naturally the conclusions of the Employment Tribunal on matters of fact or on reasonableness may be wrong or others may have reached different conclusions thereon, but these are points that could be made against any fact-finding Tribunal. Our function is limited to correcting errors of law.
12. We see no error of law in the approach taken by the Employment Tribunal as to the application of section 123. A point we raised during the course of the hearing was whether the language in paragraph 9, where they say "We do not consider that the Applicant did everything within her power to mitigate" could be said to be an error of law or approach. Read literally, there may be some force in that argument but, in our judgment, when these Extended Reasons are read as a whole the isolation of that sentence does not give rise to a reasonably arguable point of law.
13. In conclusion, therefore, we have decided that this appeal does not raise a reasonably arguable point of law. All it raises are issues that were well within the range of decision-making of the Employment Tribunal on issues of fact and reasonableness and therefore we dismiss the appeal.
14. Again, I repeat our gratitude to the representative from the Hounslow Law Centre for arguing the case on behalf of Miss Hince. It is always helpful to us to have informed representations on these matters.