Appeal No. EAT/978/02/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 February 2003
Judgment delivered on 27 March 2003

Before
MR RECORDER DUTTON QC
MR A E R MANNERS
MS B SWITZER

C W PITTARDS PLC	APPELLANT

MR S P POOLE	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ROBERT CATER
(Advocate)
Peninsula Business Services Ltd
Riverside
New Bailey Street
Manchester M3 5PB
	
For the Respondent	MR ANDREW MAYNARD
(Solicitor)
Messrs Andrew Maynard & Co
(Solicitors)
6 Gay Street
Bath BA1 2PH

MR RECORDER DUTTON QC:

1. 	This Appeal concerns the remedy granted by the Employment Tribunal sitting in Bristol to the Respondent, Mr Poole, for which the Tribunal’s reasons were promulgated on 22 July 2002.  The Bristol Tribunal had on 10 May 2002 upheld the Respondent’s application to the Tribunal that he had been unfairly dismissed.  At a preliminary hearing this Tribunal dismissed the Appellant’s appeal against the finding of unfair dismissal but it has permitted the appeal against the compensation awarded to the Respondent to go forward to a full appeal.  

2. 	At the hearing before us the Appellant employer (“Appellant”) has been represented as it was below by Mr R Cater of Peninsula Business Services Ltd and the Respondent employee (“Respondent”) has been represented by Mr Andrew Maynard of Andrew Maynard & Co, Solicitors, as he was at the hearing below.

Background
3. 	We take the background facts from the Tribunal’s Decision made at the liability hearing and set out in the Extended Reasons dated 10 May 2002.  Prior to his constructive dismissal the Respondent worked for the Appellant for a period of approximately 13 years.  The Appellant is involved in the leather industry and is a long established company whose origins date back, we are told, to the early 19th century.  The Respondent’s job involved the running of six drum machines through the night shift as part of the leather dying process.  He worked a 12 hour night shift.

4. 	Towards the end of 2000 Mr Ian Jeffrey became the acting night shift manager.  In March 2001 Mr Jeffrey formed the view that it was appropriate to target the Applicant for close scrutiny of his work procedures.  

5. 	The Tribunal observed (see paragraph 20) that there was a very swift moving by the Appellant from observation of supposed inaccuracies in the various work records to an opinion being expressed about a “final warning if not a dismissal”.  In due course the Respondent was subjected to a disciplinary procedure during which he admitted that he may have made genuine mistakes on the process sheets but that he never made any planned or intentional falsification of the information on the sheets.  Nevertheless, the Appellant chose to disbelieve him in effect making findings against the Respondent that he had been “cheating” and acting “fraudulently” (see for example paragraph 27).  This is relevant to the Tribunal’s finding that they considered it unlikely that the employee could expect a good reference from the employer.

6. 	The disciplinary process of the Respondent ended with him being given a final written warning which would last for 12 months and his being removed to another job by way of a “disciplinary transfer”.  The Respondent, justifiably so the Tribunal found, considered that he had been dealt with in breach of contract, and shabbily. In due course he resigned.  His resignation took effect on 31st May 2001.  Within a short period of time the Respondent had obtained work, but in a different field, namely care work, and at a lower rate of pay.  At the remedies hearing the Tribunal recorded that he had obtained work quickly but that he maintained a desire, if he could, to keep working at the higher rate of pay which he should have been able to earn in the leather industry although he had not, by the time of the remedies hearing, had any success in obtaining such work.   Their findings indicate that the change of employment direction was caused by the Appellant’s breach of contract.

7. 	At both the liability and the remedies hearing the Tribunal plainly accepted the evidence of the Respondent.  Representatives of the Appellant employers gave evidence on each occasion.  The Tribunal made some firm findings of fact in relation to the employer’s conduct of their hitherto loyal and honest employee, concluding for example:-

(a) 	in paragraph 9 that the Respondent’s witnesses were, on the other hand, at times, inconsistent, disingenuous and not entirely credible at important points of the evidence;

(b) 	the Respondent’s evidence was at all times consistent … truthful … and credible;

(c) 	there had been a lack of respect shown towards the Respondent by the Appellant’s management and the failure by another member of management to deal with matters brought to his attention by the Applicant;

(d) 	the Respondent had been “targeted” for treatment which in the end the Tribunal found to be seriously unfair.

8. 	As we have said, the same Tribunal in due course heard evidence at a hearing on 13 June and 4 July in order to decide the question of remedies.  They awarded the Respondent the total sum of £55,720.  Paragraph 19 of their Decision records the manner in which they calculated the various heads of loss.  By using various calculations relating to each of the ingredient elements of the loss claim they found that the total sum which fell to be awarded was £74,417.47 which fell to be reduced because the statutory maximum for the basic award was £3,120 and for the compensatory award £52,600 (“the statutory cap”).  So the global figure became £55,720.

The claim for injury to feelings and the cross appeal
9. 	One of the heads of claim was a claim for injury to feelings.  This was sought pursuant to Johnson v Unisys Ltd.  The Tribunal recorded in paragraph 16 of their remedies decision that “the Respondent’s treatment of the Applicant was very poor.  He was targeted by the Respondent in an unpleasant way and was, justifiably, very upset at what happened to him.  However we consider that the wording in Norton Tool Company Ltd v. Tewson requires us to interpret “just and equitable” in section 123 of the Employment Rights Act 1996 to mean compensation for financial loss only.  Lord Hoffman’s comments in Johnson v. Unisys raise the question of whether section 123 might be extended to include injury to feelings in appropriate unfair dismissal cases, but they do not answer this question”.  In view of the fact that no appellate court had answered this question the tribunal refused to make an award for injury to feelings.  Mr Poole has appealed that finding and his cross-appeal on this question was before us.  In the event we have heard argument on the employer’s appeal only at the conclusion of which, and having retired to consider the matter, we indicated to the parties that our unanimous decision is that the appeal should be dismissed.  In the circumstances, because the award is already at the maximum that can be made by an employment tribunal, the Respondent has indicated, through Mr Maynard, that he is content to withdraw the cross-appeal and it will therefore stand dismissed.  However, the fact that that appeal will stand dismissed for entirely pragmatic reasons should not be taken as indicating agreement by the Respondent to the propositions contained in paragraph 16 of the Employment Tribunal’s decision, nor to the other aspects of the decision which are challenged by the cross appeal.

Ingredients of the Award
10. 	The Award was calculated as follows.

(1) 	Basic Award
£240 x 13 x 1 (£3,120) [This is not challenged]

	(2) 	Compensatory Award
A net figure of £6,640.34 was awarded for loss of earnings from the date of dismissal to the date of the hearing, i.e. between 31 May 2001 to 13 June 2002 in the sum of £6,640.34 being the difference between the amount he would have earned, £16,602.84, from the amount he in fact had earned in his new job of £9,962.50.

The Respondent was awarded £150 for loss of statutory rights.  

In respect of loss of future earnings, the Tribunal took the view that the total period for which they should award loss of earnings was a total of two and a half years.  They calculated that the net annual loss of earnings be awarded in full for a total period of two years and then at a rate of 50% for a further six months.  This gave a net total of £8,240.70.

11.	In respect of loss of employer’s contributions to the final salary pension, the Employment Tribunal used a guideline calculation of 10% of his annual salary of £20,500, i.e. £2,050 per annum which for a period of 54 weeks from the date of dismissal to the date of the hearing, amounted to £2,128.68.  They then had to calculate the pension figure for the period from June 2002 to December 2003, i.e. the balance of the two and a half year period already referred to above, which, using the same guideline 10% and 5% for the balance of six months, came to a total of £2,485.62 after a reduction of 3% for SERPS.  

12.	The Tribunal then had to calculate the future loss of pension contributions.  The Tribunal made certain findings, to which we shall return further below, as to the length of time that they considered the Respondent would have continued working for the Appellant had the unfair dismissal not occurred.  They concluded that the Appellant would have worked for the rest of his working life to retirement age of 65, with a 10% risk that he would not, and they made an award on that basis.  Because the Appellant was entitled to remain a participant in a final salary pension scheme, the Tribunal calculated the Employer’s contribution into such a scheme and subtracted from it a notional figure which they considered the Appellant’s new employer or employers throughout the rest of his working life would make for a final money purchase scheme.  They calculated that the net loss to the Respondent of employer contributions using recognised percentage figures was £997.08 per annum and multiplying this by 32 (the balance of his working life) they arrived at a total figure for loss of pension at £31,906.56.  This is challenged.

13. 	The balance of the Award was made up by loss of enhancement of accrued rights in the sum of £22,865.57.  We record here for the sake of convenience that there has been no appeal against the methodology of calculation of this loss which has been taken from Harvey, save that the Appellant contends that the 10% risk of losing his former employment, which is the amount by which the global figure arrived at using the methodology set out in Harvey has been reduced, is, it is said, put too low.

The grounds of appeal
14. 	The Appellant criticised the Tribunal on the following grounds:

(a) 	that the Tribunal erred in concluding that the Respondent had attempted to mitigate his loss when the Respondent’s own evidence was that he had failed to apply for jobs that he was qualified to undertake;
	
(b) 	that the Tribunal erred in concluding that the Applicant would provide a poor and damaging reference for the Respondent for any job applied for, whether in writing or by way of a supplemental telephone reference, despite assurances to the contrary by the Applicant, where there was no evidence to support such a finding;

(c) 	with regard to the Respondent’s entitlement in respect of his pension the Tribunal erred in the following:

(i) 	by concluding that there was a 90% chance that the Respondent would have remained in continuous employment with the Applicant for a period of “33” years until he attained the age of 65;

(ii) 	by failing to provide any regard to the Appellant’s evidence that the Appellant company was reviewing the final salary scheme, in particular whether to continue such a scheme;

(iii) 	the Tribunal has provided insufficient reasons as to their assessment of the Respondent’s pension entitlement;

(d) 	that the Tribunal erred in awarding a level of compensation for future loss equivalent to a period of two and a half years to the Respondent without having regard to the Respondent’s evidence of uncertainty over his intentions for the future and in the absence of any evidence from the Respondent of an intention to mitigate future loss;

(e) 	that the Tribunal erred in failing to have general regard to the Applicant’s submissions in their decision.  

15. 	Before turning to the relevant grounds of appeal as developed orally before us, we should record certain fundamental findings in the Extended Reasons which the Tribunal provided after the conclusion of the remedy hearing.  They specifically found:

(a) 	that the Respondent had discharged his duty to mitigate (see paragraph 4);

(b) 	that on or about 6 June 2001 the Respondent had taken up alternative employment in a care home owned by a friend of his, i.e. within a week or so of his resignation from the Respondent company.  This move required the Respondent giving up work as a skilled worker in a leather factory and moving into an entirely different environment, which necessitated a significant decrease in the Respondent’s earnings.  The Tribunal has recorded that the Respondent was “determined to keep working and, in particular, did not want to rely on state benefits”.  The Tribunal find (see paragraph 5) that this was an appropriate way of mitigating his loss.  They have taken into account the fact that the Respondent was attempting to obtain work in the leather industry but concluded that, if ultimately he was unsuccessful in re-establishing himself in skilled work in the leather industry, it was probable that he would continue working in the care industry although he was obviously considering alternatives;

(c) 	they considered that it was possible that the Respondent would be unsuccessful in being able to get back into the leather industry (see paragraph 7).  They considered it “highly likely, given the lack of any suitable reference from the Respondent company which would aid the Applicant in applying for jobs within a relatively small industry that he was further handicapped in this regard” (see paragraph 7).  They went on to say (see paragraph 9) that the Respondent would have an “inability to produce a reference which does credit to his long working years for the Respondent company”;

(d) 	in paragraph 13 they state “we bear in mind in particular that such schemes (i.e. referring to the Appellant’s final salary pension scheme) are now increasingly being phased out by employers and that even those that continue to operate them are, increasingly, not allowing new employees to enter them …   We have therefore reflected this continuing loss by way of a notional continuing loss of contribution figure to reflect this to the end of the Applicant’s life of age 65”;

(e) 	they assumed (as in effect the parties had invited them to do) that at the point that the Appellant would notionally return to work at a rate comparable to his old salary – i.e. £22,000 p.a – his future employer would pay a 3% contribution to a money purchase pension scheme, i.e. a figure of about £660 per annum.  They therefore subtracted this continuing pension contribution figure from the overall employer’s contribution figure leaving a net annual loss of £997 odd;

(f) 	in relation to the loss of enhancement of accrued rights, they have followed the arithmetical calculation set out in Harvey at D1/2623.  They reduced this figure by 10% to reflect the chance that the Applicant may not have continued to work for the Respondent company until he retired at 65.  As we have said we understand that there is no challenge to the methodology, but that the 10% figure is criticised for being unrealistically low.

Discussion
(1) 	Mitigation
16. 	It is well known that the dismissed employee has a duty to take reasonable steps to mitigate his loss.  We stress that the duty is one to take reasonable steps; the duty is not absolute.  We doubt that this case turns on the burden of proof.  It is for the employee to establish that he has taken reasonable steps to mitigate; it is for the employer to prove once the employee has established steps to mitigate, that the duty has not been discharged.  It therefore fell upon the Appellant on this appeal to establish either that the Employment Tribunal had misdirected itself as to the nature of the duty to mitigate or, that it had acted perversely in making its finding that the Respondent employee had, on the facts as found, discharged the duty.  That finding amounted to a finding of fact that reasonable steps had been taken by the Respondent to mitigate his loss.  Mr Cater in arguing this part of the Appeal contended that the Tribunal failed to take account of the fact that there was “no evidence of applications for employment”.  Second, he contended that there was evidence that the Applicant would work with the partner with whom he lived in the field of estate agency or something similar.  Third, he said that “some attempts” were made to obtain work but these were not enough.  Fourth, that there was one job advertised within the leather manufacturing industry which the Respondent had not in fact applied for. Fifth, that the Respondent’s attitude was that he would prefer to stay working in the care industry whereas his attitude should have been that he should get back to a higher rate of pay in either the leather or some other industry.

17. 	We reject these contentions. Nowhere does the Tribunal incorrectly set out the law as to the duty to mitigate.  As to the evidence concerning whether the duty was discharged, it was for the Tribunal to make its factual judgment as to whether on the evidence which it had heard, the employee had reasonably mitigated his loss.  Whilst the employee must reasonably mitigate his loss there is no rule of law which requires an employee to obtain work at the same rate of pay as he was receiving in a job for an employer for whom he had worked for the previous 13 or 14 years.  His obligation is to act reasonably.  In this case the Tribunal has not simply condoned the move into care work but has found that the Respondent was attempting to work in the leather industry.  The Tribunal’s conclusion that the Respondent had acted reasonably and therefore complied with his duty to mitigate is one which it was entitled to come to on the evidence which was before it.  For example, the Tribunal had before it detailed evidence from the Respondent himself in the form of a witness statement specifically relating to the issues that arose in relation to compensation.  His evidence included a lengthy description of what steps he had taken in order to obtain alternative work.  He had written on 8th June 2001 to all of “the principal leather manufacturing companies in the area”, sending both his CV and a note as to the type of job he was interested in.  Within his statement there was evidence that he had started work within about a week of his former employment coming to an end, that he was not prepared to take benefits for any period of time at all, that he had registered with a job agency and employment agencies, that he had sought to gain a further qualification (an NVQ), that he had been keeping his eye out for vacancies in the field in which he was qualified, but that he had not found anything, and he thought it unrealistic that he would be able to find anything in that field.  Further, he alluded to the difficulty which he envisaged he would have in obtaining work in the leather industry because of the views which the Respondent’s management had formed about his honesty.  As to the one particular job; we understand that it was one of which he was unaware, but we have seen nothing to suggest that the tribunal was perverse in not making a finding either that he should have been aware of it, or that if he had been he would have obtained the job.  It is impossible against this background for us to conclude that the Tribunal’s decision was perverse.

18. 	It was the recollection of the representative for the Respondent that at the hearing below the Appellant had in fact agreed the figures for loss for the whole of the period from the date of the dismissal to the date of the remedies hearing.  It appears from the submissions that Mr Cater made to us that he did indeed accept the figures as calculated but that he made submissions in relation to the requirement, as he contended, for the Appellant to do more to mitigate his loss.  We have considered the Tribunal’s reference to Mr Cater’s acceptance that the duty to mitigate had been discharged in paragraph 4 of the decisions, but we do not consider that this led them to an incorrect, let alone a perverse, finding when they also concluded that the Respondent had in fact discharged his duty to mitigate.  It is clear from the rest of the decision that the Tribunal had well in mind the evidence which the Respondent gave, and which they accepted, as to the various steps which he had taken to discharge his duty to mitigate.

19. 	The next criticism that Mr Cater makes of the Respondent’s decision is that, he contends, the Tribunal ignored evidence called on behalf of his clients that his clients would have been prepared to grant a reference and deal “neutrally” with any factors relating to how it was the Respondent came to resign from the company.  We consider that the Tribunal was entirely justified in reaching the conclusion that it was unlikely that there would be a good reference from the employer.  The employer was contending that the Respondent had, during the course of his employment, been dishonest.  It seems to us a little unrealistic to expect that a potential new employer, making the sort of full and careful enquiry that any employer might care to make, would be provided with a glowing reference on the Respondent by the Appellant.  Indeed for the Appellant to do so would have required the Tribunal to have concluded that such a reference would not have been altogether frank.  In these circumstances it cannot be said that the Tribunal simply ignored the employer’s evidence or made a perverse finding:  in our judgment they were not prepared to accept this evidence and were fully entitled not to.

20. 	In oral argument the next contention was that the Tribunal granted too much by way of future loss of income.  The period of loss awarded by the Tribunal was two and a half years.  We note that the period was reached with the Tribunal bearing in mind the fact that the Respondent had worked for the Appellant for nearly 14 years since leaving school and that for the whole of his working life he had worked in the leather industry.  There was evidence before the Tribunal that the Respondent’s father also worked for the Appellant.  Against this background a period of two and a half years for future loss is by no means excessive, and is one which the Tribunal were entitled to come to having regard to all of the evidence in the case.  Again, there is no room for a finding of perversity here.

21. 	The next criticism advanced by Mr Cater concerns the fact that there has been no credit given by the Tribunal for accelerated receipt.  His argument goes as follows.  The total Award was approximately £55,000.  Of this the compensation payment for future losses comprised about £43,000.  He contends that a discount should be made from this sum because, in respect of the pension contribution losses at least, the money is being paid to the Respondent now and he will have the benefit of it.  When asked by the Tribunal what this discount should be Mr Cater at first hazarded a figure of 10%.  We understood him to be contending that this should be the annual reduction per annum.  When the Tribunal pointed out that this was an annual rate of return on money invested which is unrealistic in the marketplace, he settled upon a suggested figure of perhaps 5%.  A rate of reduction at 10% or 5% per annum is a hopeless contention.  But we recognise that Mr Cater may have been contending for an overall reduction of between 5 – 10% on those items where the Respondent employee has obtained compensation in advance of suffering the actual loss.  This was the view taken in York Trailer Ltd v Sparkes 1973 ICR 518 (although neither side referred us to it).  However, there is no absolute rule of principle that a Tribunal must make such an overall percentage reduction as the Employment Appeal Tribunal observed in Les Ambassadeurs Club v Bainda 1982 IRLR 5 where the Tribunal made it clear that the purpose was to keep the calculation of compensation simple, and that “unnecessary complication” should not be introduced.  Neither party referred us to any authority on this point.   Assuming the submission was for a reduction of up to 10% overall, we now turn to it.

22. 	In our judgment this argument is proceeding with at least two problems unrecognised within it.  First, insofar as there is to be a discount for accelerated receipt, that discount should be made from the global figure for future losses.   This much is apparent from the decision in Walter Braund (London) Ltd v Murray 1991 IRLR 100 which the Tribunal had in mind as submissions were made and to the principle of which we drew the parties’ attention during argument (although again neither side referred us to authority).  The global figure for future losses is not the sum of £43,000 as Mr Cater contends, but a figure very much higher than this of about £63,000 odd the full extent of which the Tribunal has been unable to award because of the statutory cap on compensation.  Within that figure approximately £8,240 comprises loss for the balance of the period of two and a half years by which time the Respondent would have obtained employment at the old rate of pay.  We consider that if a discount was to be given on any part of this sum, given current market conditions, the rate would be no more than perhaps 2.5% per annum or thereabouts for the period by which the payment has in fact been accelerated.  This would mean that a figure of no more than a few hundred pounds would fall to be deducted from the sum of £8,240 odd comprising the future loss of earnings – assuming the whole sum had been promptly paid when awarded.

23. 	But there is a second problem unrecognised by the Appellant but revealed as submissions were made. The dismissal took place on 31.05.01, and the loss of earnings has been held to continue to December 2003 with the figure being reduced by 50% for the period June to December 2003.  None of it has been paid we were told.  It is impossible for Mr Cater to contend that credit should be given for the accelerated receipt of money which has not been paid over but which sits in his client’s bank account.  So far as this element of the claim is concerned it turns out that we are now more than half way through the loss of income period and no money has been paid.   By the time the payment is made (even assuming it is within the next few days) the employer will have enjoyed the employee’s money for a longer period than the employee will have it in his bank.  No credit need therefore be given on the part of the employee.

24. 	Mr Cater did not develop submissions before us as to how it was we should reduce the continuing loss on the basis of accelerated receipt in respect of the loss of pension benefits beyond suggesting a figure of 5 to 10%.  The amount is £31,906.56.  It is the only other area of loss which is attacked within the notice of appeal.  We doubt that the Tribunal was bound of its own motion to have made such a reduction, not at least without receiving submissions from the parties (see the cases referred to in paragraph 21 above).  This is because the base figures being used to calculate the loss of employer contribution was the figure arrived at at the end of the two and a half year period after the dismissal occurred, i.e. the figure being used to make the calculation is a figure calculated notionally as arising between June 2002 and December 2003.  That figure does not per se allow for future inflation, the Tribunal simply taking a basic multiplicand (of £997.00 odd) and multiplying it by the future years of supposed work at the Appellant’s premises (in this case 32).  In those circumstances, and in the absence of argument on the point below, we do not consider that an argument for discounting by imposing a percentage decrease because of accelerated receipt can in fact arise on this appeal.  

25. 	However, we do have some concerns.  We are concerned that the Tribunal has neither applied a discount for early payment, nor adjusted the multiplier: it has simply used a multiplier of 32, which equates to the number of years which the Tribunal calculate the Respondent employee would have worked with the Appellant.  There are two approaches which a Tribunal might in future consider adopting when confronted by the same question.  The Tribunal could have reduced the overall figure of £31,906 by a conventional percentage of about 10% to recognise that the money is being received in advance.  Alternatively the Tribunal having settled upon the actual number of years of future employment as being 32, could, having heard argument, and been referred to authority, have applied a more conventional multiplier such as would be used for example in calculating future loss of earnings for a similar period: we would expect this to be, in this case around 24-25.  No submissions were advanced to us as to the correct multiplier and we doubt that they were below.  We are not therefore prepared to go further than give this indication.   But assuming a multiplier of 24 (in the Appellant’s favour) the figure for loss of pension contributions falls from £31,906.56 to £23,928.00.  

26. 	Applying the points set out above to the present case would have the effect of reducing the overall global figure of £74,000 by about £3,200 (10% of £31,906), or by about £8,000 (using the lower multiplier of 24) which would mean that the global figure prior to the statutory cap would be either £70,800 or £66,000 and, stripping out the basic award of £3,120, still well above the statutory cap of £52,600.  Even if the multiplier were to reduce to a figure considerably lower, and we are not persuaded it should, the Appellant must succeed in the next argument if Mr Cater is to persuade us to reduce the compensation awarded by the Tribunal  to below the statutory cap.

27.	The final specific submission relates to the findings or assumptions used to calculate the pension losses, and to discount the global sum for loss of enhancement of accrued rights.  The Tribunal made a finding that there was a 90% chance that the Respondent (employee) would remain in the Appellant’s employment to the age if 65 if he had not been unfairly dismissed.  The argument goes as follows.  The leather industry is contracting (see paragraph 7 of the Employment Tribunal’s Decision).  There are uncertainties which would have arisen even if the Respondent had continued to work for the Appellant such as the economy contracting, risk of redundancy and so on.  The argument goes that the Tribunal in concluding that there was a 90% chance that the Respondent would continue his working life with the Appellant to retirement was in all of the circumstances perverse.  

28.	As to this we have observed the following:

(i)	the Tribunal has itself taken into account the risk of decline in the leather industry and this is a factor in their reasoning contained within paragraph 7;

(ii)	the Respondent had already been working for the Appellant for a period of between 13 and 14 years with, until this particular event, no concern about his employment record.  The only event that the Tribunal knew of in his working life which in any way affected his future employability by the Respondent, was one which they found to be deeply unfair and which therefore had to be ignored.  

(ii)	The Respondent had worked for the Appellant during the economic recession of 1990 to 1993.  Neither we, nor, we assume the Tribunal, were told of any adverse effect upon him of that recession.

In those circumstances this was a strong case for a tribunal to make a finding that there was a very high prospect that the Respondent would, as he contended, have worked with the Appellant right the way through to retirement at the age of 65, and that his pension losses should be calculated on that basis..

29. 	There was additionally evidence before the Tribunal that the Respondent’s father also worked and continued to work with the Appellant.  This was a case where there was a family bond within the leather industry which was something which the Tribunal was entitled to take into account when calculating the percentage chance that the Respondent would continue to work for the rest of his working life with the Appellant.

30. 	It was against this background that the Tribunal assessed the prospects as being 90%.  We agree with Mr Cater that this is a very high percentage.  But the question for us on appeal is whether or not this figure is so high as to be perverse.  Whilst we agree that it is high, we are not persuaded that it is perverse.  In making such a finding a tribunal must in any individual case reach the percentage figure having regard to the facts of that particular case.  The facts in this case very strongly indicated that the percentage was going to be high.  

31. 	In support of a related argument, Mr Cater also relied upon the fact that there was evidence from a representative of the employer that the final salary pension scheme that the employee belonged to in this case was under review.  The argument being advanced to us was that the Tribunal should have discounted the pension losses further because of the prospect that the final salary pension scheme would be terminated altogether.  The Respondent’s evidence, according to Mr Cater, was that there was a prospect that the whole scheme would be closed down.  By contrast Mr Maynard on behalf of the Respondent, contended that there was a contractual right to belong to the final salary scheme if, as has happened in this case, the Respondent had elected to join it.  The only documents before us in relation to this question can be found at pages 55 and 56 of the Bundle.  They contain the following terms:

		“6. 	Transfer to the final salary section.
	If you are under 20 when you joined the comp scheme you will be invited to join the final salary scheme at age 20.  If you decline this invitation or you are over age 20 when you joined the comp scheme, you will be offered an annual opportunity to transfer into the final salary scheme between the ages of 35 and 45.”

	Also at page 56 Mr Maynard points to the fact that membership of the final salary scheme is provided for as follows:

“All new employees aged over 20 and under 54 would automatically be included in the final salary scheme.  If you decide that you do not wish to be a member of the final salary scheme, you may elect instead to join the company comp scheme, or to take out a personal pension, or to participate fully in SERPS.”

	Further, under the heading “Benefits”, the scheme provided:  “For each year of membership of the scheme, you will be entitled to receive at normal retirement a pension of 1/80 of your final pensionable salary”.  Before us Mr Cater attempted to introduce a letter dated January 2003 relating to the final salary pension scheme.  But it was pointed out to him that in order to do this he had to satisfy the Ladd v. Marshall test, i.e. he had to establish first that such evidence could not with reasonable diligence have been available to him at the time of the Tribunal hearing; second, that the evidence had to be reasonably credible; and third that it would have had an important influence on the outcome of the case.  Mr Cater decided not to proceed with persuading us to take into account this evidence and we do not therefore do so.  In the circumstances therefore the Tribunal had to make the best judgment that it could against a background where the evidence before it showed in documentary form that there was an entitlement on the part of the Respondent to be a member of a final salary pension scheme.  Further the evidence was that he had joined such a scheme.  In our judgment the Tribunal took into account the fact that there was a risk that such schemes might be amended to the extent that there may be a curtailment of more employees joining the scheme, but they did not go so far as to find that there was a prospect that this particular scheme would be cancelled so as to remove the rights and benefits from those, such as the Respondent, who were already members of it.  Judged by the evidence that was before the Tribunal at the time, this was a conclusion which they were entitled to reach.  On the one hand the documents pointed to a contractual right to be a member of the final salary scheme which had certain defined benefits, and on the other hand there was some evidence before them from the Respondent that the scheme was under review, and might close.  But the scheme had not closed at the date of the hearing before the Tribunal even if it has now.  Although we understand there was a discussion before the Tribunal about a possible adjournment we understand that no application to adjourn was made, nor is there any ground of appeal based upon a failure to adjourn to discover whether the scheme would close – or what the precise consequence of closure might be upon the Respondent.  We cannot say in the light of this evidence, and this background, that the Tribunal has reached a perverse conclusion and we do not do so.

32. 	 In all of the circumstances therefore this ground of challenge also fails. 

33. 	Towards the end of his submissions Mr Cater made a number of further criticisms.  First he contended that no reasons were given for rejecting particular parts of the evidence of the company’s representative.  Second he contends that there was no mention as to why the evidence of the company was not accepted.  This latter he advanced by reference to paragraph 7 of the Decision.  It is of course necessary for the Tribunal to state in its Decision what its reasons are for coming to a particular conclusion on the main issues in the case.  In our judgment the Tribunal has fully complied with this obligation in this Decision as a whole.  There is no obligation on the Tribunal to set out its reasons for rejecting every particular aspect of particular witnesses’ evidence.  In this case it is clear to us that the Tribunal has preferred the evidence of the Respondent on the major issues relating to the question of compensation and in others has done the best that it can in an area where, of necessity, a tribunal is having to make certain relatively rough and ready assumptions and predictions in order to calculate what are, by common acknowledgement, future risks and eventualities.  It is doing this in order to comply with its statutory duty to award compensation which is “just and equitable”.  

Conclusion

34.	Our conclusion is that in one area only, namely loss of future pension contributions, the Tribunal probably should have discounted the sum awarded by about 10% to allow for accelerated receipt. Alternatively the Tribunal appears to have used a multiplier which we consider was probably too high even allowing for the Tribunal’s finding, which we leave undisturbed, that there was a 90% prospect of the employee remaining in employment with the employer to the age of 65.  We would have reduced the multiplier in respect of loss of pension contributions down to about 24 from 32.  The overall effect of these alternative ways of making adjustments would have been to reduce the loss of pension contributions from £31,900 odd to either £28,700 or £23,900 odd, and the overall global figure from about £74,000 to either £70,800 or £66,000.  Stripping out the basic award of £3,120, these figures are still well above the statutory maximum which the Tribunal can award.  In all other respects the Tribunal’s Decision in relation to remedies cannot be faulted and we therefore reject this Appeal.  In the circumstances, Mr Maynard has indicated that he will withdraw the cross-appeal.  There is therefore no need for us to determine any questions on the cross-appeal and it will therefore be dismissed.