Appeal No. EAT/0700/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 March 2002

Before
HIS HONOUR JUDGE PETER CLARK.
MR J HOUGHAM CBE
MR P R A JACQUES CBE

1)	MR B ARMSTRONG 
2)	MRS J ARMSTRONG	APPELLANTS

      THE HONOURABLE COMPANY OF 
      MASTER MARINERS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MISS A V CUTTING
(Solicitor)
[Employment]
25 Elm Grove
London
SE15 5DB	
For the Respondent	MR R DOWNEY
(of Counsel)
Instructed By:
Messrs Rayner De Wolfe
Solicitors
31 Southampton Row
London
WC1B 5NA	

JUDGE PETER CLARK:
1.	These are appeals by Mr and Mrs Armstrong, the Applicants before an Employment Tribunal sitting on 19 – 20 March 2001 at London (Central) chaired by Mr D H Roose, against so much of that Tribunal’s decision, promulgated with extended reasons on 3 May 2001 as:
	(1)	reduced Mr Armstrong’s compensation for unfair dismissal by 40% in respect of his contributory conduct and 
	(2)	held that Mr Armstrong ought to have found alternative employment within 9 months and Mrs Armstrong within 3 months of their unfair dismissal by the Respondent, the Honourable Company of Master Mariners, and limited their claims for lost earnings accordingly.

Background
2.	The Applicants, husband and wife were employed by the Respondent, effectively as caretakers, onboard HQS Wellington, a ship moored near this building, which acted as the Respondent livery company’s head quarters.  Their joint employment commenced in January 1996 and ended in their resignation in July 2000 in circumstances which the Tribunal found amounted to constructive dismissal, those dismissals being unfair in the absence of any potentially fair reason for dismissal being advanced by the Respondent.  The Tribunal’s finding as to contribution in the case of Mr Armstrong is set out succinctly at paragraph 17 of their reasons, against a background which it is unnecessary for present purposes for me to go into.  Similarly, the Tribunal’s findings on the question of remedy in both Applicants’ cases is dealt with at paragraph 18 of their reasons:

“The Applicants were dismissed on 19 July 2000 but they were paid to the end of the month.  They have returned to their native Sunderland but they have not managed to find work notwithstanding that, they have been unemployed for some 8 months.  While the first Applicant is now 61 his wife is almost 10 years younger.  While we can see that there is some argument to explain the difficulties that he has encountered, these do not apply to his wife.  She has demonstrated that she possesses a number of skills in carrying out the work at the ship and is furthermore capable of doing clerical work.  There are many letters on the file which have been composed by her.  We note that they have applied for a number of jobs that have been advertised in various parts of the country but they have not been successful.  They do not appear to have pursued with any vigour any opportunity that has become available in Sunderland.  We feel that in the circumstances the First Applicant should have found work within 9 months from leaving the Respondent and the Second Applicant within 3 months.  She earned less money and has a greater variety of skills to offer.”

3.	These appeals were commenced by notices of appeal dated 15 May 2001.  In those appeals, Miss Cutting, who appeared on behalf of the Appellants below, raised what may be described as allegations of procedural irregularity before the Employment Tribunal.  Those grounds of appeal were developed in a skeleton argument prepared for the purposes of a preliminary hearing, which took place without the Respondent present in the usual way on 18 October 2001, before Lord Johnston and Mr Straker.  At that hearing no affidavit evidence nor comment from the chairman had been obtained pursuant to paragraph 9 of the EAT practice direction.  In a short judgment, Lord Johnston identified what I have described as the procedural irregularity points and in addition a point taken on the level of contribution, which was under challenge in Mr Armstrong’s appeal.  Lord Johnston concluded:

“It will have to be determined in due course, assuming this appeal succeeds (which is not a question) whether or not the matter should be determined by another Tribunal or by the same Tribunal and we simply raise that at this stage.”

4.	Pausing there, as we have made clear to the parties today, it is not the function of the EAT at a preliminary hearing to give a clear and unequivocal view as to the outcome of the appeal.  The only question is whether or not the appeal raises any and if so what arguable points of law.  For our purposes today we approach the matter without preconceptions.  The second point to make about the preliminary hearing is that no special directions were given, in particular, no directions were given for the filing of affidavit evidence on behalf of the Appellants and if necessary the Respondent on the question of procedural irregularities below.  The purpose of that practice is to enable the chairman and if necessary the lay members of Employment Tribunal to comment on what is said about the proceedings which they conducted.  As a result the matter has come before us today for a full hearing with both parties present, but without any affidavit evidence or chairman’s comments on the procedural irregularity issues.  We say issues because on the differing accounts given to us by Miss Cutting and Mr Downey on the instructions of his solicitor, Mr Finlay, who appeared on behalf of the Respondents below,  there is a question as to whether or not Miss Cutting was given an opportunity to make submissions on the issue of contributory fault, it being said on the other side that such an opportunity was given by the Tribunal below, and secondly, whether or not the Applicants, through their representative, were denied the opportunity to give evidence on the issue of remedy.  Having considered the rival accounts of what happened below, it is clear to us that we are unable to resolve this appeal today, in the absence of evidence and chairman’s comments.  

5.	Accordingly and with considerable regret in view of the expense incurred by both parties, not to mention the inconvenience to the Applicants who have travelled down from the North East, we have, as we think both advocates realistically recognise, no option but to adjourn this appeal hearing.  We do so with the following directions.  First, the Appellants, most sensibly through Miss Cutting, are to file an affidavit which sets out the precise complaints about the conduct of the proceedings below.  That involves any complaint made about the opportunity to make submissions on the issue of contribution, as well as the question as to whether the Appellants were prevented from leading evidence and making submissions on the issue of remedies.  That affidavit will be filed within 21 days of today.  Thereafter, the Respondent, most sensibly through their solicitor, Mr Finlay, should also file an affidavit in reply if so advised.  That should take place within 21 days after receipt of the Appellants’ affidavit.  

6.	Once those affidavits are in, copies will be sent to the chairman for his written comments by reference to his notes of the proceedings.  Once those comments are received, the papers will return to me for a further direction as to the conduct of this appeal.  At that stage, if so advised, either party may make any application which seems to them to be appropriate.  I shall then give all necessary directions for this case to come back before the Employment Appeal Tribunal, not necessarily before this division.  In particular, having considered the affidavits, I will direct whether or not it will be necessary for there to be cross-examination of the deponents in accordance with the practice laid down by Lindsay in Facey v. Midas Retail Security [2000] IRL 812.  

7.	Finally the question of costs, which has been raised by Mr Downey on behalf of the Respondents.  At this stage we shall say no more than that the question of the costs of today are reserved to the Tribunal which finally hears and determines this appeal.