Appeal No. UKEAT/0485/06/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 22 February 2007

Before
HIS HONOUR JUDGE ANSELL
MR C EDWARDS 
MRS J M MATTHIAS

BABCOCK WANSON UK LTD	APPELLANT

MR M WRIGHT	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Miss Barbara Zeitler
(of Counsel)
Instructed by:
Eurolawline
Oakworth Hall
Oakworth
Nr Keighley
BD22 7HZ	
For the Respondent	Mr Michael Wright
(The Appellant in Person)	

SUMMARY
Unfair dismissal – Compensation
Loss of pension rights and reasons for choosing a method of calculation should not have been dealt with by Tribunal using a certificate of correction which in any event made no reference to the employer’s arguments, gave no reasons for their decision and used figures which the Claimant had amended.

HIS HONOUR JUDGE ANSELL

1.	This is an appeal which followed a hearing at a Watford Tribunal on 28 January 2005.  The Claimant below the Respondent here appeared in person and Ms Zeitler appeared below for the employers as she does now.  The unanimous decision of the Tribunal was that the claim for unfair dismissal by reason of redundancy was well-founded and the Tribunal eventually ordered a total sum of some £19,447.62 by way of compensation to include claims in relation to past and future pension losses.  

2.	The background to the claim was that the Claimant had been an engineer with the Respondent Company between 30 October 2000 and June 2004 and had been dismissed by reason of redundancy in a letter dated 23 April 2004.  At the original hearing it appears the Tribunal did not deal in any detail with the claims in respect of loss of pension rights.  They invited the parties to try and agree matters based on the Pension Guideline Third edition, which is often used by Tribunals in making appropriate awards in this area and in particular on the basis of what is known as the simplified approach.  

3.	What happened was that following the hearing in January the Respondent set out his claims in a letter dated 22 February 2005 and that letter was also sent to the Tribunal.  He listed four heads of compensation for loss of enhancement of accrued pension rights in the sum of £2719.26 and by way of parenthesis we can indicate that that sum has never been in dispute.  He then set out loss of pension rights from the date of dismissal to the date of hearing in one category totalling some £3811.50 and the second category of loss of future pension rights from the date of the hearing to the end of the award period in the sum of £2194.50.  Both of those calculations were worked out on the basis of a weekly salary times a percentage contribution and within the percentage contribution, allowance was made for both employer and employee contributions, and there for a figure of 0.2 was used as the appropriate figure.  In addition a multiplier called the table 7.1 factor of 1.2 was applied and again there is no dispute about that 1.2 factor being the appropriate sum.  The dispute in the case relates to the 0.2 figure.  

4.	Although we, as an Appeal Tribunal, do rarely get involved in these precise calculations, from a cursory glance at the contribution tables it does appear that the guidelines do suggest that it is only the employer contribution that is normally included and not the employee, but we really do not propose to say anything more than that at this stage because as we indicate we do not get involved in that calculation.  

5.	The next thing that happened was on 2 May Eurolawline who appear for the employers, sent to Mr Wright a counter schedule.  We should have mentioned that within Mr Wright’s schedule he also included a small amount for loss of life assurance benefits totalling some £477.  It does appear that that document, the counter schedule from employers, was also sent to the Tribunal although as will appear below in a moment, there was no reference to that counter schedule in the Tribunal’s eventual adjudication on this issue.  The employers took issue on the percentage contribution multiplier and expressed the view in that schedule that it should be a lower sum of 0.113 based purely on the percentage contribution the employer made.  They also contended that life insurance was included in the pension and therefore there should not have been a separate head recoverable.  

6.	Finally on 31 May Mr Wright sent in yet a further schedule and what he did was to slightly reduce that multiplication figure from 0.2 to 0.178.  The Tribunal’s decision on liability was promulgated on 2 June and unfortunately it made no reference at all to the award in respect of pension losses.  Thereafter there was some correspondence, we need not go into the detail, and it eventually resulted in the Tribunal dealing with the matter by way of what they called a certificate of correction under rule 37(1) of the 2004 Regulations Schedule 1.  That Regulation reads:-
“Clerical make mistakes in any order, judgment, decision or reasons or errors arising in those documents from an accidental slip or omission made at any time be corrected by certificate by the Chairman, the vice President or President.”  

The certificate then proceeded to set out the following.  First of all, it awarded a sum in respect of loss of enhancement of accrued pension rights in the sum of £2719.26 and as we have indicated already there was nowhere in dispute about that.  It then took up the loss of pension rights to the date of hearing and picked up the sum of £3811.50 which was the figure Mr Wright had advanced in his original schedule, although he as quite properly accepts before us today, he had in fact reduced that in his second version down to £3392.40 and then took a figure of £1953.20 loss of future pension rights to the date of hearing to the end of the award which was the sum he had advanced in his letter of 31 May.  It simply rejected the contention about life assurance.  

7.	Nowhere in that letter does it make any reference at all to the counter schedule that the employers had filed and the contentions that had been advanced within that counter schedule that the multiplier of 0.113 was the more appropriate figure to be used, and as we have indicated already the figures themselves were wrong because they had adopted Mr Wright’s original approach which he had subsequently reduced in part.  It does seem to us that the certificate of correction was really not the method to have been used as far as dealing with this aspect was concerned.  It would have been far more appropriate to have simply delivered supplementary reasons from the Tribunal which dealt, albeit briefly, with the rival contentions that were being advanced in the letters.  On the face of this document it is not even clear that the Chairman and his colleagues had even seen or paid attention to the employer’s version of the calculation, and it seems to us that therefore this document is deficient, both in the fact that the method of correction was used which really seemed to us to be inappropriate, and secondly the failure of the Tribunal to deal in any way with the rival arguments that were being advanced about particularly the multiplication figure to be used.  There were attempts to remedy the defect and indeed through the early stages of this appeal a review was sought from the Chairman who declined to review the matter in a letter on 12 June 2006 the Tribunal said this:-

“Chairman, Mr. Herbert has directed that I write the following: “There is no reason that I can see for a further review.  The decision made was amended according to the instructions and submissions made by the parties and I see no need to alter it further.”

There is some suggestion in that letter that he has seen the employer’s contention but still not given any reasons at all as to why he preferred Mr Wright’s version over the other version.  

8.	We are left in no doubt that the only proper course is to set aside the certificate of correction and to invite the Chairman and the members to reconsider this issue and to give reasons as to the appropriate method of pension loss on the disputed items and also to deal with the life assurance issue.  Mr Wright advances the fact that at the hearing he was told that life assurance would be taken into account when dealing with pension losses and he now contends that the Tribunal has reversed its view in saying that it is included with the pension losses.  It is not possible for us to indicate whether that is right or wrong.  

9.	The area of dispute is not enormous, the difference between the two pension calculations is, we believe, around £3000 or so and we would have hoped that the employers might take a practical view in view of the costs involved and that some form of compromise can still be reached. We are also concerned to note that they have not even paid up the non-disputed items and there is, on any view, a balance of some £4000 or £5000 outstanding in respect of the non-disputed amounts the Tribunal have awarded and we will invite Ms Zeitler to speak to her clients urgently to persuade them to pay up the non-disputed items as quickly as possible.  As, has been pointed out, interest is calculated on that award and therefore is no doubt running at the appropriate rate.  We would therefore propose to send the matter back and we believe that the same Tribunal should deal with the issues.  It is a very narrow and discreet part of the case that has got to be looked at again and it seems to us that that would be wholly impractical and not sensible to invite a new Tribunal to look at the whole case again, particularly as Mr Wright is advancing that certain things were done and said by the original Chairman which has subsequently been altered or not acted upon in his final conclusions.  So we are going to invite the Tribunal to look at this matter and invite them to look at it again as soon as possible.  We would hope that they could fix up an early hearing in either April or May to deal with this issue.

10.	We propose to order that each party, within 14 days, files submissions and supporting documents before the Tribunal in support of their case concerning pension losses.  Can I make it clear that there is no dispute about the compensation for loss of enhancement, so that area cannot be re-opened.  There is an agreed sum of £2719.26, which Mr Wright and Ms Zeitler have both agreed in letters and it is not to be reopened.  So we want to limit the amount to the loss of pension rights from the date of dismissal to the date of hearing and from the date of hearing to the end of the award period and the life assurance issue, which as we have already pointed out is only a sum of a few hundred pounds.  

11.	Mr Wright and Ms Zeitler have both got to file submissions and documents to support that within 14 days from today on Friday 8 March 4pm and within the following two weeks Mr Wright and Ms Zeitler have both got to get together to agree a bundle of documents.  My colleagues have been quite restrained in terms of their comments about the volume of documents that they were presented with this morning in no particular order and I have great sympathy for their situation, at least I saw some of them yesterday.  We really cannot have documents flowing into the EAT in this haphazard fashion which we have had in this case and certainly there is no reason why the Tribunal has to be treated in that way either and it goes back to them.  So 14 days thereafter on 26 March Mr Wright and Ms Zeitler have to file an agreed bundle before the Tribunal.