Appeal No. EAT/1335/00 
                & EAT/0806/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 February 2001

Before
MR COMMISSIONER HOWELL QC
MR P DAWSON OBE
MR P A L PARKER CBE

MR A WEBB T/A MEWS ESTATE AGENTS	APPELLANT

MR N HOLDHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	NO APPEARANCE OR REPRESENTATION                   BY OR ON BEHALF OF 
THE APPELLANT 	

MR COMMISSIONER HOWELL QC:

1.	We have before us for preliminary hearing two appeals by Mr Andrew Webb trading as Mews Estate Agents, arising out of Tribunal proceedings brought against him by a former employee, Mr Nathan Holdham.  Mr Holdham’s original complaint brought by originating application dated 14 October 1999 was that he had been unfairly dismissed by Mr Webb from Mr Webb’s employment where he had been from February 1998 until August 1999.  The precise reasons leading up to that dismissal, which was in the event found by the Tribunal on 28 April 2000 to have been unfair,  do not matter for the present purpose, since there is now no challenge to the finding of unfair dismissal.  The only appeal sought to be taken forward is by Mr Webb against the computation of the loss of earnings award made by the Tribunal.  The figure produced by that computation is set out in a later decision contained in Extended Reasons sent to the parties on 24 October 2000 at pages 3 to 4 in the second of the two appeal files before us; EAT/1335/00.  That file has been made up on a second Notice of Appeal by Mr Webb, disputing some aspects of the actual calculation used by the Tribunal in arriving at the compensation they awarded in the sum of £3,369.28.

2.	The aspect of the first Tribunal decision which relates to that and is still sought to be challenged way by of appeal in Mr Webb’s Notice of Appeal on the first decision submitted on 20 June 2000, on file EAT/806/00, is the basis of calculation of the period for which loss of earnings was to be awarded, as set out in paragraph 9 of the Tribunal’s Extended Reasons on page 12 of that file.  There in directing that there should be a further hearing to determine issues of remedy on the unfair dismissal, the Tribunal had given the following indication 

“The parties are invited to exchange information and to settle the matter of remedy between them.  In default of agreement, the Applicant is at liberty to apply to the Tribunal and the case will then be listed for the determination of remedy.  In their negotiations it will assist the parties to know that the Tribunal proposes to adopt the period of loss for the period from 30 August 1999 to 21 January 2000, the date when the case was originally listed for hearing.  From the figure for loss of earnings for that period the Tribunal will deduct the amount earned by the Applicant in mitigating his losses during the same period.”   

3.	The grounds of appeal against the directions embodied in that decision are first, that the Tribunal had misdirected themselves in selecting as the period of loss, a period down to the date of the Tribunal’s own original hearing date.  This Mr Webb made clear in his original Notice of Appeal he considered to be an arbitrary method of calculating compensation which as he says, made the amount payable depend on how busy the Employment Tribunal was.  Secondly, in relation to that appeal he sought to criticise the Tribunal for having made a biased or perverse decision because he alleged that the Chairman had made some remarks in the course of the haring about the amount that estate agents were able to earn, in the context of the cost of the legal fees that might be involved in pursuing the proceedings.  We have not been satisfied that either of those two grounds shows a sufficiently arguable issue of law to warrant us directing that the appeal against that decision should go forward to a full hearing of the Employment Appeal Tribunal.

4.	As regards the first point, it is apparent from the Tribunal’s later decision giving their reasons for the actual amount awarded, that as recorded in the Extended Reasons sent to the parties on 24 October 2000, pages 3 to 4 of the second appeal file before us 

“The Applicant has chosen to limit his claim for loss of earnings to the period from the effective date of termination of employment, which was 31 August 1999, until the date when the case was first listed for hearing before the Employment Tribunal, which was 20 January 2000, even though it seems to us that his loss of earnings would have continued beyond that date.  This is a period of 21 weeks at a £180 net per week, producing a net loss in the earnings of £3,780.”   

It appears to us that embodied in that statement is a finding of fact by the Tribunal that the actual period of lost earnings had continued beyond the date when the case was first listed for hearing before the Employment Tribunal, even though the Applicant was no longer pursuing a claim for loss of earnings beyond that date.  That appears to us to demonstrate that the actual award made by the Tribunal was not in fact dictated by the chance of the Employment Tribunal listing dates, but was related to a genuine consideration by the Tribunal of the period for which the Applicant had actually continued to suffer a loss of earnings.  We can see nothing wrong in that and accordingly we reject the first ground of appeal in relation to the period adopted.

5.	Secondly, still dealing with the appeal against the first decision, we were not satisfied that the Appellant’s complaints about what appears to have been intended as a light hearted remark by the Chairman (which according to the Chairman’s own version of events, which has been obtained in the usual way, came not during the actual consideration of the proceedings but after they had terminated, though that appears to be disputed by the Appellant himself), had any material effect on the actual decision to which the Tribunal came at all.  Although the Chairman might afterwards have considered it would have been better if he had not attempted to introduce such a light hearted remark, we cannot see it have any material effect on the outcome of the proceedings or resulted in any actual injustice to the Appellant.    For those reasons, we dismiss the appeal against the first Tribunal decision: that is the decision given at the time of the finding of unfair dismissal on 28 April 2000 and contained in the Extended Reasons sent to the parties on 10 May 2000.

6.	That leaves the second appeal against the decision setting out the actual computation, sent to the parties in Extended Reasons on 24 October 2000.  Here the Appellant’s sole ground of appeal is that in taking a weekly net income figure of £180 per week as the Tribunal recorded itself as having done on the evidence presented to it, the Tribunal had erred since Mr Webb wished to contend before this appeal Tribunal that the correct sum should have been only £153.23 per week.  This he said was supported by documentary evidence that he had sent to the Tribunal, in particular in the form of a letter dated 6 July 2000, which is at page 9 of this second appeal file. 

7.	No one has appeared before us today to pursue this ground of appeal or to explain further to us why it is suggested that this embodied a misdirection or error in principle on the part of the Tribunal, as distinct from a disagreement by Mr Webb with the Tribunal’s assessment of the loss of weekly income which is of course primarily a matter of fact and degree for the Tribunal to decide on the evidence before it.  It is true that the letter of 6 July 2000, which asserts that based on figures from Mr Webb’s own accountant, Mr Holdham’s net earnings for the relevant period averaged out at only £153.23 a week, was not itself referred to in either the summary reasons or the statement of Extended Reasons for the decision sent out on the 24 October 2000.  On the other hand, as the Tribunal clearly recorded, their assessment was based on what they understood to have been oral evidence given by Mr Webb himself on oath to the Tribunal on 28 April 2000, and confirmed in a written statement which he had provided for the Tribunal on the same date.

8.	It may be that the discrepancy between the two figures of £180 a week, which the Tribunal thought it right to use for the calculation, and the £153 a week figure for net earnings provided by the accountant is explained by the Tribunal’s inclusion (as they specifically recorded) of amounts for what were referred to as “commission and transport allowance” in the gross figure which they took as the starting point for their calculations, recorded in paragraph 4, 5 and 6 of their Extended Reasons.  Whether or not that is the explanation, we were not satisfied by what was placed before us that there were grounds for saying that the evidence in the letter was completely incompatible with the figure determined by the Tribunal on the basis of the evidence to which they referred, and accordingly, we were not satisfied that there was such an error in principle as to make it arguable that the Tribunal had reached an unreasonable or perverse decision or had erred as a matter of law in the approach they took to the assessment of weekly earnings and compensation.  

9.	Since we were not so satisfied, the Appellant’s disagreement with the figure is a matter simply of fact and degree on which the Tribunal has stated the figure which they thought it right to take and have given, what in our judgment, are adequate reasons to support the findings they made.  It follows that in our judgment, there is no arguable error of law in the Tribunal’s decision on this case either to warrant us directing that that second appeal should go before a full hearing of the Employment Appeal Tribunal.  Accordingly, we now dismiss that second Notice of Appeal as well.