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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sim v. Moss Kaye Pembertons Ltd [2003] UKEAT 0274_03_2507 (25 July 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/0274_03_2507.html Cite as: [2003] UKEAT 0274_03_2507, [2003] UKEAT 274_3_2507

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APPEARANCES

 

For the Appellant	MS SYLVIA SIM (the Appellant in Person)
For the Respondent	MR M SHERIDAN (of Counsel) Instructed by: Messrs Graham Harvey & Co Solicitors Bank Chambers 375 Regents Park Road Finchley London N3 1DE


 


HIS HONOUR JUDGE PETER CLARK

1. The Appellant, Ms Sim, was employed by the Respondent and its predecessor as a secretary/personal assistant to Graham Harris, a Director of the company, in the Retail Agency Department of their North London property agency from September 1997 until her dismissal in February 2002.
2. Following her dismissal she presented two Originating Applications to the London (Central) Employment Tribunal. The first, on 15 March 2002, complained of unlawful deduction from wages and breach of contract. The second, on 25 April 2002, complained of unfair dismissal, unpaid wages and breach of contract. The complaints were combined and came on for hearing before a Tribunal chaired by Mr B Charlton on 22 and 23 August and 16 October 2002. Over those three days of hearing the Appellant represented herself. At the end of those three days the Tribunal announced their decision on liability only. They found that the Appellant had been unfairly dismissed by the Respondent but that she had contributed to her dismissal by her own conduct to the extent of 75%; secondly, they upheld her complaint of breach of contract in the Respondent's failure to pay her the 2001 Christmas bonus. The loss was £393.75 net. A claim for holiday pay was resolved between the parties and dismissed on withdrawal. Finally, a claim for contractual sick pay was dismissed on the basis that she was contractually entitled to no more than statutory sick pay ("SSP").
3. Having resolved the liability issues the Tribunal adjourned the question of remedies to a hearing fixed for 25 October 2002. The Appellant did not attend that hearing. The Tribunal nevertheless proceeded to consider to what remedy she was entitled for her unfair dismissal. In her absence they rejected a claim for reinstatement finding that the employment relationship had broken down and also taking into account their finding on contribution. They then assessed both the compensatory and basic awards based on her witness statement and amended schedule of loss. The upshot was that in addition to the outstanding bonus payment she was awarded a total of £2,250.67 compensation for unfair dismissal, after deduction of 75% contribution, applied to both the compensatory and basic awards.
4. These findings and the reasons for them are contained in a composite decision with Extended Reasons ("EWR"), promulgated on 12 December 2002.
5. Against that decision the Appellant now appeals and the Respondent cross-appeals. The facts appear sufficiently from the Tribunal's reasons. We shall refer to the facts only insofar as is necessary to explain our reasons for our determination of both appeal and cross-appeal.

The Appeal

6. The first two grounds of appeal raise a procedural point. On 21 June 2002 a directions hearing took place before a Chairman, Miss E Potter, sitting alone. One of the orders which that Chairman made was that on or before 1 August 2002 the Respondent was to produce a trial bundle, producing a copy forthwith to the Appellant.
7. In fact, the Respondent's bundle was not delivered to the Appellant's home until 7.30pm on the night before the first day of hearing, 22 August. No excuse for that breach of Miss Potter's direction is advanced by Mr Sheridan today. She contends that the bundle had no index and consisted of more than 200 pages, some of which she had not seen. She complains that she had lost the services of her barrister at short notice and as a result was placed at an unfair disadvantage and hampered in the presentation of her case. She invokes Article 6 of the European Convention on Human Rights. The Respondent was represented by Counsel, not Mr Sheridan who appears before us today.
8. On the face of it, that is a potentially powerful complaint. However, it does not tell the full story. True it is that the Appellant was represented by Counsel under the Free Representation Unit ("FRU") Scheme. However, by letter dated 9 August 2002 from that representative, Betson Criddle, to the Respondent's solicitors, she wrote:

"I write to inform you that the Applicant has withdrawn her instructions for me to act on her behalf."

9. We enquired, therefore, as to the circumstances in which the Appellant came to part company with that representative. It seems that the Appellant was concerned that Ms Criddle was going on holiday the following week. However, it is not suggested that she would be on holiday on 22-23 August. We are therefore left with the impression that the Appellant decided to dispense with her services for reasons which are not immediately apparent.
10. The Appellant then made application for an adjournment of the substantive hearing, then fixed for 22-23 August, by a letter dated 12 August. She there refers to the FRU representative being on holiday "all this week" and until further notice the Appellant would be dealing with the matter herself. That application was refused by a Chairman by letter dated 16 August 2002. The reason for refusal given was that the matter had been listed in June and approved by the parties. The Appellant did not produce evidence of when the representative's holiday was booked.
11. On the first day of hearing, 22 August, the Appellant objected to the case starting before she had an opportunity to familiarise herself with the Respondent's bundle. Accordingly, the Tribunal adjourned the matter until the following day so that she could read the bundle. The case resumed the following morning and she made no further application for an adjournment. As a result of losing the first day the hearing on liability was resumed, after a gap in time, on 16 October.
12. In these circumstances we cannot accept that the Appellant was materially disadvantaged by the Respondent's late production of the bundle. We have enquired as to the extent that that bundle contained documents with which the Appellant was not already familiar. The Appellant has referred to two documents only and we accept the Respondent's submission, not contradicted by the Appellant, that the bundle contained no document which was not identified in a list sent to the Appellant's FRU representative under cover of a letter from the Respondent's solicitors dated 23 July 2002.
13. The next point also arises from the directions order made by Miss Potter and dated 28 June 2002. At paragraph 5 that Chairman observed:

5 "The Applicant indicated that the Respondent's witnesses that she saw as critical to the issues of the case were Mr G Harris, Mr M Harris and Mr E Shapiro and the Respondent confirmed that those witnesses would at the least be available at the hearing."

14. Both Mr Graham Harris, to whom the Appellant worked, and Mr Eric Shapiro, a Consultant to the Respondent, were called to give evidence by the Respondent at the substantive hearing and were cross-examined by the Appellant. However, Mr Martin Harris did not attend and was not called by the Respondent.
15. The Appellant now complains about Mr Martin Harris' non-attendance, contrary to the indication given by the Respondent at the Potter directions hearing. As she puts it in her Skeleton Argument:

5 "The Applicant now asserts that Mr Harris was pivotal to the development of her case."

16. We were not told what evidence Mr Martin Harris could usefully have given in support of her case.
17. The difficulty we have is that it must have been obvious to the Appellant that Mr Martin Harris was not present at the Tribunal on either 22 or 23 August. Indeed she tells us that she spoke with the Respondent's solicitor who said that Mr Martin Harris would not be called to give evidence and would not be attending the hearing. Yet the Appellant did not seek an order for his attendance either on 23 August or 16 October. Even had she done so, it would have been for an order that he attend to be called by her. She could not cross-examine him. It would also have been open to the Tribunal to call him of their own motion had it been thought necessary, but that did not occur to the Tribunal, it not having been suggested or raised by the Appellant.
18. In these circumstances we are again unable to see that the Appellant was placed at a material disadvantage in the conduct of her case below due to the absence of Mr Martin Harris.
19. The next point taken by Ms Sim is that the Tribunal did not give full reasons for its decision as to her contribution to her dismissal; further, the finding of 75% contribution was arbitrary and excessive.
20. As to whether the reasons given by the Tribunal on this aspect of the case were "Meek compliant", to use Sedley LJ's expression coined in Tran v Greenwich Vietnam Community [2002] IRLR 735, paragraph 17, we accept Mr Sheridan's submission that they were. The Tribunal's reasons chronicle a tale of rude and aggressive behaviour by the Appellant towards staff and directors of the Respondent and clients of the business, coupled with procedural failings on the part of the Respondent. The latter findings explain why the dismissal was unfair; the former, based on findings of fact by the Tribunal, explain the finding of contribution by the Appellant. As to the extent of her contribution, the assessment of 75% is, by its nature, a less than exact science. But as the Court of Appeal has made clear, e.g. in Hollier v Plysu Ltd [1983] IRLR 260, the assessment of the level of an Appellant's contribution to his or her dismissal is very much a matter for the fact-finding Tribunal. We can only interfere if the assessment may properly be characterised as legally perverse. Ms Sim submits that the finding was irrational. Having considered the Tribunal's detailed findings as to the Appellant's behaviour we cannot say that it is. Further, we can see nothing exceptionable in the Employment Tribunal taking into account the way in which the Appellant conducted her cross-examination of the Respondent's witnesses in reaching their factual findings as to the nature of her behaviour during her employment with the Respondent.
21. The next point concerns the Tribunal's assessment of the Appellant's earnings following dismissal for the purposes of calculating her compensatory award for unfair dismissal. It arises out of a misunderstanding of the Tribunal's award and has now been withdrawn by the Appellant. She tells us that the misunderstanding was that of a friend and not hers. At paragraph 12 (f) EWR the Tribunal note that because the Appellant failed to attend the remedies hearing on 25 October, apparently because she was appealing the Tribunal's oral decision on contribution and in relation to contractual sick pay; see reasons paragraph 12 (a), they had no information as to whether she had been in receipt of state benefits. In these circumstances they issued a recoupment notice in case she had received benefits as they were statutorily bound to do. She tells us that she was not in receipt of benefit. In that case the recoupment notice is of no practical effect; there is nothing to be recouped by the relevant department of state out of her compensatory award, which will then be payable in full by the Respondent.
22. Next the Appellant challenges the Tribunal's decision not to award her any compensation for injury to feelings arising out of her unfair dismissal. At paragraph 12 (d) EWR the Tribunal consider her claim, raised in her amended schedule of loss, for £10,000 for injury to feelings.
23. The Tribunal rejected that head of claim on the basis that there was no evidence before them to substantiate that claim. We uphold their reasoning on that ground. However, we would go further and say that had an award been made under that head and cross-appealed by the Respondent, as Mr Sheridan tells us it would have been, we should have set it aside, following the judgment of Burton P in Dunnachie v Hull City Council [2003] IRLR 384, considering the dictum of Lord Hoffman in Johnson v Unisys Ltd [2001] IRLR 279, paragraph 55. We respectfully agree with the President that non-economic loss is not recoverable in a claim for unfair dismissal for the reasons which he there gives.
24. Next the Appellant challenges the applicability of the three-fold test adumbrated by Lord Johnston in Simrad Ltd v Scott [1997] IRLR 147, to which the Tribunal refer in dismissing her claim for loss of an opportunity to extend the lease on her home to 999 years and to purchase a share of the freehold due to her financial situation, she alleges, caused by the loss of her employment with the Respondent. That claim is raised in her amended schedule of loss and dealt with, again by the Tribunal at paragraph 12 (d) EWR.
25. In Simrad the EAT considered the principles upon which a compensatory award for unfair dismissal fell to be assessed in accordance with section 123 (1) of the Employment Rights Act 1996. The three-stage process first requires the Tribunal to make a factual quantification of the losses claimed. In relation to the alleged lost opportunity to acquire a 999 lease on her property and a share in the freehold, the Appellant failed to give any evidence, whether in a witness statement or orally before the Tribunal, to support her alleged loss, quantified in her amended schedule of loss at £10,519.37.
26. In these circumstances we are satisfied that there was no evidential basis upon which the Tribunal could make an award. Indeed the danger of making such an award, as Mr Sheridan correctly put it in argument, is that on enquiry today we discovered that the sum claimed by the Appellant in her schedule is not in fact the loss but the cost to her of acquiring an extended lease and share of the freehold in her home. The loss is the difference in value between her present leasehold interest (less than 999 years) and the increased value in the additional interest, if any. That would require professional valuation evidence which has not been obtained. Thus, even now, the alleged loss is purely speculative.
27. Finally, the Appellant challenges the Tribunal's finding that she had no contractual entitlement to full pay during her sick absence, but was restricted to SSP. Having examined that part of the appeal we are satisfied that the Appellant led no evidence below to establish a right to contractual sick pay greater than SSP. Accordingly the Tribunal was entitled to decide the point on the basis of the evidence which it received and accepted. In particular, the appointment letter to another secretary/personal assistant, Jacqueline Prooth, which referred to SSP entitlement only (EWR paragraph 5 (n)).
28. It follows that, having considered each of the ways in which the Appellant puts this appeal, we can discern no error of law in the Tribunal's approach. Consequently it must be dismissed.

The Cross-Appeal

29. The attack is limited to the Tribunal's finding as to remedy. Mr Sheridan divides the periods of loss compensated by the Tribunal into that between dismissal and the merits hearing held on 22 and 23 August 2002 and secondly the question of loss thereafter.
30. His principal submission is that in the absence of the Appellant at the remedies hearing there was no evidence on which the Tribunal could make any award in favour of the Appellant. In particular the Respondent, who called no evidence at the remedies hearing but was represented by Counsel, had no opportunity to cross-examine the Appellant on her efforts to mitigate her loss by finding alternative employment.
31. We reject that submission. There was evidence from the Appellant in the form of paragraph 23 of her witness statement, standing as her evidence in chief at the liability hearing, coupled with her schedule of loss. The basic award was a simple matter of arithmetic, the Respondent having its own record of her wages details during employment. The loss to 16 October, the date to which she was directed by the Tribunal to work for the purposes of the amended schedule, was again a matter of arithmetic subject to (a) her attempts to mitigate her loss and (b) her earnings from alternative employment. As to the former, she lodged copies of job applications and refusals up to 16 July. The Tribunal accepted on this documentary evidence that she had been trying to find work and they accepted her figures as to monies earned in alternative employment between 22 August and 16 October. As to future loss, they awarded the modest figure of £405, based on a partial loss of earnings.
32. It seems to us that the compensatory award including half the expenses claimed of £300 and a figure of £250 in respect of loss of statutory rights, represents a figure reached by the Tribunal doing the best it could on some, but limited evidence. We can see no grounds in law for interfering with that conclusion. There was some evidence supporting the findings. The weight to be given to that evidence was essentially a matter for the Employment Tribunal.
33. In these circumstances we shall dismiss the cross-appeal also.

Costs

34. We are not persuaded that this appeal falls within Rule 34 nor in the absence of Ms Sim do we think that the cross-appeal is unnecessary in the sense that it was tacked on, we suspect because the appeal was brought. We doubt if it would have been separately brought as an appeal. But the Respondent has failed on that so we think that honours are even to that extent and we make no order for costs.