Appeal No. EAT/0796/02/TM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 October 2002

Before
HIS HONOUR JUDGE PETER CLARK
MR D CHADWICK
MS G MILLS

CPS GROUP LTD	APPELLANT

MR M AKINFALA	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR PAUL TAPSELL
(Of Counsel)
Instructed by:
Messrs Dakers Green Brett
Solicitors
The Captain’s House
Central Avenue
Pembroke
Chatham Maritime	

JUDGE PETER CLARK

1.	On 15 May 2002 an Employment Tribunal sitting at London (South) under the chairmanship of Mr Michael Zuke heard the Applicant, Mr Akinfala’s complaints of unfair dismissal, wrongful dismissal, failure to provide written reasons for dismissal and failure to pay arrears of holiday pay against his former employer, the Respondent CPS Group Ltd.  Material to this appeal is the Employment Tribunal’s finding, contained in their decision promulgated with extended reasons on 10 June 2002, that the Respondent was unfairly dismissed; that he did not contribute to his dismissal by his own conduct and their award of compensation for unfair dismissal totalling £7,545.30

2.	The finding of unfair dismissal itself is not challenged in this appeal, brought by the Respondent below; what is challenged is (a) the finding that the Applicant did not contribute to his dismissal and (b) the computation of a week’s pay for the purposes of calculating the loss of past and future earnings elements in the compensatory award for unfair dismissal.

3.	Dealing first with contributory fault, the background is that the Applicant was employed by the Respondent from 19 July 2000 as a security guard.  The site at which he worked at the relevant time was premises owned by the then Government Department, MAFF.  The contract for providing security services at that site, made between the Respondent and MAFF, came to an end.  Other guards on site were re-located by the Respondent, but not the Applicant.  Offers of alternative employment were made to him but refused on health grounds.  On 5 October 2001 the Applicant received his form P45 from the Respondent.  The Respondent accepted before the Employment Tribunal that he was dismissed and that dismissal was both wrongful at common law and unfair. 

4.	However, it was contended that he had contributed to his dismissal in 2 respects.  First, that he had unreasonably refused alternative employment offered to him by the Respondent; secondly that he had not been contactable on several occasions when the Respondent had attempted to contact him to offer him work.

5.	The Employment Tribunal, having reminded themselves of the guidance given by the Court of Appeal, particularly Brandon LJ as he then was, on contributory fault in Nelson v BBC (No 2) [1979] IRLR 346, that an Applicant’s conduct must be culpable or blameworthy, rejected both contentions advanced by and on behalf of the Respondent.  At paragraph 9 of their reasons they said this:

“The Tribunal was unable to accept that submission.  In our view, the Applicant had reasonable grounds for declining the offer of assignments to the sites mentioned above.  He had medical reasons for so doing, which he had communicated to the Respondent.  His declining those assignments was not blameworthy conduct.  In our view, the fact that the Applicant could not be contacted by telephone on a number of occasions cannot be characterised as blameworthy conduct.  The Applicant remained at the same address throughout his employment with the Respondent.  He could have been contacted by letter throughout his employment.  The Tribunal therefore decided that it would not be just and equitable to reduce either the basic or the compensatory awards for unfair dismissal.”

6.	In this appeal Mr Tapsell challenges only the Employment Tribunal’s finding in relation to telephone contact or lack of contact with the Applicant.  He has sought to persuade us that a point of law arises in relation to that finding by the Employment Tribunal.  He says that as a matter of principle in the security industry it is important that security guards remain contactable by their employers and he points out, as the Employment Tribunal found, that the Applicant at the relevant times had a mobile telephone with a voice mail facility.  

7.	Despite his best efforts Mr Tapsell has not persuaded us that any point of law arises in relation to this part of the Employment Tribunal’s decision.  It was essentially a question of fact for the Employment Tribunal as to whether or not this aspect amounted to blameworthy conduct.  They found that it did not.  We can see no ground in law for interfering with that finding.  Consequently, we dismiss this part of the appeal.
 
8.	Turning to the question of a week’s pay, the Employment Tribunal dealt with that issue at paragraph 10 where they said this:

“The Tribunal considered the calculation of a week’s pay having regard to section 224 ERA (that is the Employment Rights Act 1996).  The Applicant presented the Tribunal with 12 payslips, the latest of which was dated 4 June 2001, and the earliest 21 August 2000. Mr Frame (for the Applicant) invited the Tribunal to calculate a week’s pay on the basis of the information contained in those payslips.  Mr Tapsell submitted that these payslips were selective, and should not be relied on by the Tribunal.  However, although the Respondent must have full details of the Applicant’s pay throughout his employment, it did not produce any evidence of the sums paid to the Applicant.  The Tribunal decided that it was proper to calculate the Applicant’s pay on the basis of the information that had been provided by the parties.  As the only details of pay were those provided by the Applicant, the Tribunal accepted Mr Frame’s submission that it should calculate a week’s pay on the basis of the 12 payslips provided by the Applicant.  Those payslips show that the Applicant received a total of £3,331.76 gross pay, and £2,419.07 net pay.  The Applicant’s week’s pay for the purposes of section 224 is £277.65 (ie £331.76 ÷ 12).  The Applicant’s average net weekly pay is £201.58.”

9.	In this appeal Mr Tapsell accepts the calculation as it appears for the purposes of section 224 of the 1996 Act.  His point is that whereas a week’s pay as defined in Chapter 11, sections 220 and following in the Act, is appropriate for the purpose of calculating the basic award, it is not the correct basis for calculating the compensatory award.  There under section 123(1) the question posed by the statute is this:

“Subject to the provisions of this section 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.”

10.	He submits that neither section 123(1), nor section 124(1) which deals with the limit on a compensatory award, imports the concept of a week’s pay from sections 220 and following.  Accordingly a week’s pay for the purpose of calculating the basic award may be and in this case submits Mr Tapsell should be different from the loss of earnings’ weekly figure for the purpose of calculating compensatory award.

11.	We think that this raises an arguable point of law which ought to proceed to a full hearing.  Consequently, on this limited ground only, the matter will proceed to a full hearing with both parties present.  It will be listed Category C.  There will be a time estimate of 1 hour.  No further directions are necessary save that there will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of the skeleton arguments to be lodged with the Employment Appeal Tribunal at the same time.