Appeal No. UKEAT//0197/07/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 July 2007
Judgment handed on 1 August 2007

Before
HIS HONOUR JUDGE PETER CLARK
MR P R A JACQUES CBE
MS N SUTCLIFFE

KWAN YICK (UK) LTD	APPELLANT

MR D GACON-LEWIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MARTIN WEST
A Representative
Peninsula Business Services Ltd
Litigation Department
Riverside
New Bailey Street
Manchester
M3 5PB	
For the Respondent	MR DAVID GACON-LEWIS
In Person	

SUMMARY

UNFAIR DISMISSAL

Mitigation of loss

Compensation for unfair dismissal – duty to mitigate loss – loss attributable to unfair dismissal – point not argued below (Kumchyk).  Appeal dismissed.

HIS HONOUR JUDGE PETER CLARK

1.	This is a remedies appeal.  The parties are Mr Gacon-Lewis, Claimant and Kwan Yick (UK) Ltd, Respondent.  The Claimant was employed by the Respondent as warehouse manager.  He worked very long hours, starting between 5 and 7 am and working sometimes until 10 pm.  He also worked alternate Saturdays.  That said, he was properly remunerated by the Respondent earning, at the end of his employment, at least £29,000 per annum basic plus a bonus of £15,000.

2.	He was summarily dismissed on grounds of alleged misconduct on 10 October 2005, leading to this claim of unfair dismissal before the Cardiff Employment Tribunal.  An Employment Tribunal chaired by Mr John Bowen found his dismissal to be unfair by a Judgment with reasons registered on 27 October 2006.  Thereafter a remedies hearing took place on 26 January 2007.  By a second judgment with reasons dated 8 February the Employment Tribunal awarded compensation in favour of the Claimant totalling £62,260.  Against that award the Respondent appeals with the permission of Elias P.  Having considered the appeal at the paper sift stage the President directed a Full Hearing of the appeal limited to a single issue formulated in this way:

“Whether the Claimant’s compensation should have been reduced because of a failure to seek part-time work while engaged on his University Course.”

3.	To place that question in its factual context the Employment Tribunal, having noted the Claimant’s 16 years service with the Respondent, rising to the position of Warehouse Manager and his long hours and rate of remuneration, made these further findings at paragraphs 3-5 of the Remedies reasons:
“3.	When he was dismissed on 10 October ‘2005, he reasonably concluded, after some futile attempts at obtaining similar employment, that he was unlikely to match his previous earnings, and, encouraged by his wife, he enrolled on a two-year part-time university course. His purpose was to obtain a Certificate of Education which will enable him to teach in the sphere of Adult Education, such subjects as English Language (to foreign learners) and remedial teaching to those deficient in literacy or numeracy.
4.	We considered this decision, in all the circumstances, to be a bona fide action to mitigate his loss of earnings. He received comparatively little financial assistance by way of grant towards the cost of education, amounting only to two annual contributions to tuition fees of £1,000 each. He also obtained a student loan.
5.	In February 2006 his wife, aged 62, became disabled due to progressive loss of eye-sight. We accept his explanation that caring for her during this progression; it was impracticable to attempt to find part-time casual work whilst engaged on a university course.”

4.	The Employment Tribunal concluded that he should be compensated for 2 years lost earnings, at the rate previously earned with the Respondent net, less the modest contribution to his tuition fees (paragraph 4).

5.	In advancing this appeal on behalf of the Respondent Mr West, who did not appear below, accepts that it is not open to him to challenge the Employment Tribunal’s finding that it was not unreasonable for the Claimant to embark on the University teachers training course.  However, he focuses on the Employment Tribunal’s further finding, reasons paragraph 5, that whilst caring for his wife, it was impracticable for the Claimant to attempt to find part-time casual work whilst engaged on a university course.

6.	He submits that the Employment Tribunal erred in law in failing to consider:

(1)	whether, had he not been dismissed by the Respondent, the Claimant would have maintained his earlier level of earnings with the Respondent following his wife’s disability

(2)	whether his caring responsibilities constituted an intervening act which prevented him from seeking part-time casual work, thus reducing the loss attributable to the unfair dismissal.

7.	We are not convinced, having heard the Claimant in person, that the Respondent’s case was put in either of these ways below and thus the appeal is open to objection under Kumchyk principles; see Kumchyk v Derby City Council [1978] ICR 1116; approved, Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 (CA).  In particular, if the appeal is allowed on either or both of the bases advanced by Mr West he accepts that it would be necessary for the matter to be remitted to the Employment Tribunal for further fact-finding and we have in mind the Claimant’s submission before us that (a) he was a conscientious employee of the Respondent and would not have let his obligations to his wife affect his obligations to the Respondent had he remained in the employment and not been unfairly dismissed and (b) that whilst he was engaged on a part-time university course as a student he nevertheless was also obliged to carry out teaching assignments as part of that course which would seriously impinge on his availability for additional part-time paid work.

8.	In these circumstances we are satisfied that there was evidence before the Employment Tribunal to justify the findings made at paragraphs 4 and 5 of their reasons.  We shall not permit the Respondent, by way of appeal, to reargue the case below.  Accordingly this appeal is dismissed.