Appeal No. UKEAT/0277/08/ZT
UKEAT/0278/08/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 September 2008
	       Judgment handed down on 12 February 2009

Before
HIS HONOUR JUDGE ANSELL
THE HON LORD MORRIS OF HANDSWORTH OJ
MR T STANWORTH

EAT/0277/08/ZT

MS S ROBERTS 	APPELLANT

AEGON UK CORPORATE SERVICES LTD	RESPONDENT

EAT/0278/08/ZT

AEGON UK CORPORATE SERVICES LTD	APPELLANT

MS S ROBERTS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR S PLAUT
(of Counsel)
Instructed by: 
Messrs ASB Law Solicitors
Innovis House
108 High Street
Crawley 
West Sussex RH11 1AS	
For the Respondent	MR S MILLER
(Solicitor)
Messrs MacRoberts Solicitors
152 Bath Street 
Glasgow G2 4TB	

SUMMARY

UNFAIR DISMISSAL:  Compensation
Loss of pension rights can continue beyond loss of earnings.  Tribunal entitled to differentiate between a final salary pension scheme and a money purchase scheme.

HIS HONOUR JUDGE ANSELL
Introduction
1.	This is an appeal from a remedies decision of a London Central Tribunal chaired by Ms H Grewal who, following a hearing in February 2008, awarded compensation for an unfair redundancy dismissal in the sum of £38,353.56.  That amount was slightly reduced as a result of a review of the award carried out by the Tribunal to a sum of £37,188.30.

2.	The Tribunal’s original reasons were sent out on 11 March 2008 with the review reasons being sent on 6 May 2008.  The Tribunal’s award was based on Ms Roberts’ pension loss following her dismissal by Aegon calculated both in relation to her losses up to the date of the Tribunal’s assessment and continuing thereafter.  Whilst employed by Aegon she was a member of a final salary pension scheme.

3.	Following her dismissal she obtained alternative employment with Just Retirement Limited and although she had a better remuneration package with Just Retirement than with Aegon the pension scheme was less favourable, being a money purchase scheme.  The alternative employment with Just Retirement lasted until early September 2007.

4.	In the remedies decision the Tribunal concluded that her employment with Just Retirement brought to an end any possible loss of earnings claim, but determined that there was a continuing pension loss by reason of the different nature of the pension and made their calculations accordingly.

5.	The core of this appeal is that the Tribunal when finding that the Just Retirement employment brought to an end the chain of causation as far as loss of earnings was concerned should have taken the same view as far as the pension loss was concerned and not separated the two components, particularly as if one carried out an arithmetic exercise in comparing the better remuneration at Just Retirement with the less favourable pension arrangements Ms Roberts was still better off with the package being offered by Just Retirement.

6.	We now set out the Tribunal’s findings in some more detail.

The Tribunal’s findings
7.	Ms Roberts’ employment terminated on 15 January 2007 and she commenced employment with Just Retirement on the same day.  She received an enhanced redundancy payment of £24,095.32 and received a second instalment of £1,412.44 enhanced redundancy payment on 24 August 2007, the effect of that being that the non‑statutory redundancy payment was £24,057.76.  The Tribunal found in paragraph 13 that it was very likely that she would have remained with Aegon until the age of 50 and there is no appeal against that finding.

8.	The pension scheme provided for a payment of 1/60th of the final pensionable salary times the number of years of service and at the time of dismissal her final pensionable salary was £64,094.59 and having five years and seven months’ service her pension at date of leaving was £6,053.38.  The Just Retirement pension scheme was a money purchase scheme and the employers made contributions of £400 per month.  The Tribunal noted that final salary schemes “are being eased out in the private sector and it is unlikely that the Claimant will find employment in which she will have the benefit of a final salary scheme”.

9.	Ignoring the value of the pensions the Tribunal found in paragraph 15 that the value of the remuneration package with Just Retirement was worth £136 net per week more than the package with Aegon.  This took into account not only actual salary, but also matters such as the value of a car, car maintenance and insurance and permanent health insurance.

10.	The Tribunal found that Ms Roberts regarded the new job with Just Retirement as a permanent job.  She completed the six‑month probationary period successfully but unfortunately suffered health problems.  On her return to work on 3 September 2007, her employers complained about her performance and she was given the option of either being dismissed or resigning and chose to resign.  In due course she raised a grievance alleging both constructive dismissal and disability discrimination.  Eventually the dispute was compromised and on 11 October 2007 Ms Roberts and Just Retirement signed a compromise agreement agreeing that the termination date was 3 September 2007, that she was to be paid three months’ pay in lieu of notice, a sum of £4,250 representing two months’ accrued bonus, pay in lieu of outstanding entitlement and an ex gratia payment of £10,000.  

11.	At the time of the Tribunal hearing in February 2008, Ms Roberts was still unemployed, but the Tribunal found in paragraph 21, having considered all the various factors, that it was likely that she would secure employment within six months on the same basis that she had been paid by Aegon, but added:
“It is unlikely that the Claimant will find employment that will offer a final salary pension.  It is more likely that any pension arrangements in her new employment would involve a money purchase scheme.  That accords with our understanding of the trend in the provision of pensions and is supported by Mr Nicoll’s evidence.”

Mr Nicoll was an employment expert who gave oral evidence to the Tribunal.

Legislation
12.	The Tribunal at the commencement of their decision have set out the law, referring to the various decisions to which we have also been referred and to which we will make more detailed reference below.

13.	They referred in particular to Dench v Flynn & Partners [1998] IRLR 653.  In their conclusions in paragraph 22 they took into account that the fresh employment with Just Retirement was permanent and that it was not possible for them to determine the reason for dismissal and concluded as follows:
“… we do not think that it can fairly be said that the loss of earnings subsequent to that dismissal is attributable to the unfair dismissal by the Respondent.  We conclude, therefore, that the Claimant is not entitled to be awarded any compensation in respect of her loss of earnings subsequent to the dismissal by Just Retirement Ltd.”

14.	However, in paragraph 23 they went on to consider the issue of pension loss and concluded as follows:
“We next considered whether the pension loss subsequent to the termination by Just Retirement Ltd was attributable to and consequent upon the unfair dismissal by the Respondent.  We asked ourselves whether our conclusion that the loss of earnings was not attributable to the unfair dismissal by the Respondent must lead to the same conclusion for the pension loss.  We also asked ourselves whether the correct approach would be to throw in the pension loss with the loss of other benefits and then to compare the whole old remuneration package with the new remuneration package, and if the new package was the same as or more than the old to conclude that the pension loss had ceased when the Claimant obtained the new employment.  We came to the conclusion that the answer to both questions was in the negative.  The Claimant’s pension loss stems from the fact that she enjoyed the benefit of a final salary scheme with the Respondent, which she lost when she was unfairly dismissed by the Respondent.  It is a unique type of benefit.  She did not obtain the benefit of a final salary scheme when she joined Just Retirement Ltd and she is unlikely to do so in any other employment.  It is, therefore, a continuing loss that does not cease when the Claimant obtains permanent employment that pays the same or more.  It is a loss that can be reduced by obtaining the benefit of a money purchase scheme and/or by receiving a higher salary.  We think that a just and equitable result is achieved by giving credit for any benefits that the Claimant has received or is likely to receive from a money purchase scheme or a salary increase.  It is, therefore, our conclusion that any pension loss subsequent to the termination by Just Retirement Ltd is attributable to and in consequence of the unfair dismissal by the Respondent.”

15.	They then went on to determine as to whether it would be appropriate to use the simplified or substantial loss approach and concluded that the simplified approach would compensate Ms Roberts for the loss that she had suffered and then went on to set out their calculations.

16.	The Tribunal calculated using the Compensation for Loss of Pension Rights which are the guidelines prepared by the Committee of Chairmen of Employment Tribunals, the Government Actuary and his Department, that the gross loss of pension rights resulting from Ms Roberts being a member of a final salary scheme amounted to £173.80 a week, but set against that a credit that she would receive as a pension benefit in a new money purchase scheme of £98.61 per week and also credited the higher salary received from Just Retirement for a period of 46 weeks at the rate of £136 per week.

The Appellant’s case
17.	Before us, Mr Miller on behalf of Aegon pointed out that if one compared the two pension amounts set out in the calculation the employer’s contribution as assessed under the final salary scheme was £75.19 more per week than under the money purchase scheme but he argued that benefit was more than offset by the higher salary package from Just Retirement, namely £136 per week.

18.	Mr Miller firstly took us to the statute provisions.  Section 112 of the Employments Rights Act 1996 provides that where the tribunal find grounds of complaint of unfair dismissal are well-founded and they do not make an order for reinstatement or re‑engagement “the tribunal shall make an award of compensation for unfair dismissal”.  The provision for a compensatory award is contained in section 123:
“... 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.”

19.	Mr Miller argued that there was an inconsistency between the Tribunal’s conclusions at paragraph 22 and in 23.  In paragraph 22 they had determined that there was no loss (of earnings) attributable to the unfair dismissal and yet there was such a loss as far as the pension was concerned.  He argued that even if one factors in the different level of employer’s contributions attributable to the different types of pensions the difference between the two schemes was still more than offset by the increase in salary.  He argued that when in paragraph 15 the Tribunal sought to compare the two salaries and were able to convert various benefits into monetary terms, the same could have been done as far as the pension arrangements were concerned using the figures which the Tribunal utilised in the loss calculations.  Although the Tribunal had sought in paragraph 23 to justify their actions by terming the pension at Aegon a “unique type of benefit” they had made no specific findings as to why a simple money comparison was not an appropriate method of comparing the two pension schemes.

20.	He then referred us to Bentwood Bros (Manchester) Ltd v Shepherd [2003] IRLR 364 where Ms Shepherd was awarded compensation of £190,863 for unfair dismissal and sex discrimination.  This included 2½ years future loss of earnings and ten years’ loss of pension rights, the tribunal taking the view that it was unlikely that she would find pensionable employment again.  The Court of Appeal approved this approach.  Gibson LJ dealt with the issue in paragraphs 10‑13 as follows:

“10.	In considering whether or not the Tribunal has been perverse in their award of 10 years pension payments, I bear in mind that there are many statements in the authorities on the narrow circumstances in which it would be proper for an appellate body to interfere with the assessment of damages by a tribunal.  We were referred in particular to Gbaja-Biamila v DHL Ltd [2000] ICR 730 at page 742 paragraph 36 where Lindsay J, the then President of the Employment Appeal Tribunal, said this:
"An appellate court, when reviewing the quantification of compensation by an employment tribunal, should not act as it would when reviewing an award of damages by a jury.  In contrast to a jury, the tribunal is expected to give reasons and hence can be judged by those reasons: Skyrail Oceanic Ltd v Coleman [1981] I.C.R 864, 872.  That is not to say that the employment tribunal's sovereignty as to facts is here in question.  Only if, firstly, a tribunal's given reasons expressly indicate that it has adopted a wrong principle of assessment, or, secondly, (that not appearing by reason of its either correctly stating the principles or stating none) it has arrived at a figure at which no tribunal properly directing itself by reference to the applicable principles could have arrived, will the assessment demonstrate an error of law, the only class of error which this appeal tribunal can correct.  That second category may fairly be described as one where the award has been perverse, an award so high or low as to prompt in those aware of the relevant facts found and the applicable principles a reaction that the award was wholly erroneous, even outrageous: see also the collection of definitions of perversity in Steward v Cleveland Guest (Engineering) Ltd [1996] ICR 535, 541."

11. 	This court, like the Appeal Tribunal, will interfere with such assessments with reluctance, given that the Tribunal as the industrial jury can be expected to make broad brush assessments which reflect the Tribunal's local knowledge and experience.

12.	I own to a feeling of some surprise that the Tribunal have found that Mrs Shepherd, who from a fairly youthful age has held down a responsible and well-remunerated position for a number of years, should receive two and a half years loss of earnings but 10 years loss of pension, and in particular I am surprised by the Tribunal's finding that she would never obtain pensionable employment again. Mrs Shepherd was, of course, working in the textile industry, and it is notorious that that industry has been in decline for a number of years.  However, the Tribunal had to do what it could with the evidence put before it.  It is significant that Bentwood chose not to put in any evidence or challenge the facts presented by Mrs Shepherd.  The Tribunal had the evidence which she gave of the difficulties which she had encountered when trying to find a job, that is to say she had applied for 50 jobs but had only obtained a short fixed term contract.  She had in her schedule drawn attention to the fact that the textile industry is a tight-knit industry, and that as soon as the circumstances of her dismissal and subsequent tribunal claim had become known to prospective employers, they did not wish to continue their interest in her.  The Tribunal Chairman, when invited to provide notes of evidence, had said that no evidence on oath was taken and had referred to the parties' schedules of loss on which the representatives of the parties had made submissions.  The Tribunal Chairman had added: "The findings as to pension loss were made in the light of the evidence that the applicant had only been able to find one job in a year and that a temporary job without a pension".

13.	Mr White suggested that it was significant that the Chairman had not referred to the Tribunal's knowledge of local conditions or to any special factors which the Tribunal may properly have taken into account in arriving at their conclusion.  But, in my judgment, it goes without saying that a tribunal will make use of their knowledge of local conditions and will reach their assessment in the light of what they know.  There was some evidence before the Tribunal from which they were able properly in my judgment to reach the conclusion which they did on this point.  It is only a rare case when perversity can be established.  In the particular circumstances, given Mrs Shepherd's evidence in the form of the schedule of loss, which was not criticised, and the absence of evidence from Bentwood, I cannot go so far as to say that this Tribunal's decision on pension law was perverse.  Accordingly I would dismiss the appeal on that point.”

21.	Mr Miller argues that although Bentwood can be considered as authority that it is possible to work with the separate and potentially overlapping concepts of loss of earnings and pension loss, in that case all the loss was unquestionably attributable to the unfair dismissal and discrimination.  Since there was no intervening employment to consider, in effect in that case the tribunal’s decision was that some mitigation of loss would occur 2½ years after dismissal, but it would be ten years before full mitigation was achieved.

22.	Mr Miller then took us to various sections of the Compensation for Loss of Pension Rights Guidelines.  He referred us firstly to the general principles set out at paragraph 4.7:

“The key choice to be made by the tribunal is whether to look at the whole career loss to retirement which can then be discounted to allow for the eventuality that the applicant would not have remained in the employment throughout, or to look only to the next few years and assume that by that time he will have obtained comparable employment either with a similar pension scheme or a higher salary to compensate.  Tribunals have tended to find in many cases that the applicant would obtain comparable employment within a fairly short period, ranging from 3 months to 2 years.  Where the likely period of unemployment was longer the tribunal would quickly find that compensation had reached the previous statutory limit of £12,000, so that assessing future loss over a period of years was largely an academic exercise.  However, the increase in the limit in respect of compensatory award for unfair dismissal to £50,000 (now £53,500) and the removal of any limit in discrimination cases and some unfair dismissal cases require, where appropriate, an approach akin to that adopted in personal injury cases.”

23.	He then referred us to particular guidelines in relation to the calculation using the simplified approach:
“6.4	When calculating loss of earnings during this period it is necessary to work out the weekly loss and multiply it by the number of weeks between the applicant’s dismissal and the hearing (allowing for any sums paid in lieu of notice).  Our recommendation for calculating the loss of pension rights during this period, where there is no Recoupment, is simply to include with the weekly loss a sum to represent what the employer would have contributed notionally towards the applicant’s pension had he still been employed.  Of course, in the case of a final salary scheme this is not strictly a correct method of assessing the applicant’s loss, since the benefit that would have accrued to the applicant by remaining in employment does not necessarily correspond to this figure, but it would, we believe, be regarded as just and equitable by both applicants and respondents.
6.8	Although to this extent pension provision is being treated as part of the applicant’s weekly loss, it is not part of his wages and the Recoupment Regulations do not apply to the pension element.  Thus where there is Recoupment, the pension loss element should be calculated separately.”

24.	Mr Miller sought to draw particular support from paragraph 6.4.  This case was not a recoupment case and he argues therefore a simple mathematical comparison between the two salaries including pension loss would have sufficed.

25.	He submitted that the effect of paragraph 22 was that the Tribunal had determined that the loss of the first job did not have a causative effect on what happened after the second job came to an end, but that the opposite seemed to apply as far as paragraph 23 was concerned and that they were, therefore, logically inconsistent.

The Respondent’s case
26.	In responding, Mr Plaut took us through the history of authorities in relation to the effect that fresh employment has on losses flowing from a previous dismissal.  In Whelan and another t/a Cheers Off Licence v Richardson [1988] IRLR 114, Clark J giving the judgment of the EAT set out certain principles as follows:
“42	
(1) The assessment of loss must be judged on the basis of the facts as they appear at the date of the assessment hearing (“the assessment date”).

 43	
(2) Where the applicant has been unemployed between dismissal and the assessment date then, subject to his duty to mitigate and the operation of the recoupment rules, he will recover his net loss of earnings based on the pre-dismissal rate.  Further, the industrial tribunal will consider for how long the loss is likely to continue so as to assess future loss.

 44	
(3)	The same principle applies where the applicant has secured permanent alternative employment at a lower level of earnings than he received before his unfair dismissal.  He will be compensated on the basis of full loss until the date on which he obtained the new employment, and thereafter for partial loss, being the difference between the pre-dismissal earnings and those in the new employment.  All figures will be based on net earnings.

 45	
 (4)	Where the applicant takes alternative employment on the basis that it will be for a limited duration, he will not then be precluded from claiming a loss down to the assessment date, or the date on which he secures further permanent employment, whichever is the sooner, giving credit for earnings received from the temporary employment.

 46	
 (5)	As soon as the applicant obtains permanent alternative employment paying the same or more than his pre-dismissal earnings his loss attributable to the action taken by the respondent employer ceases.  It cannot be revived if he then loses that employment either through his own action or that of his new employer neither can the respondent employer rely on the employee’s increased earnings to reduce the loss sustained prior to his taking the new employment.  The chain of causation has been broken.”

27.	In Dench v Flynn & Partners [1998] IRLR 653, Ms Dench had been employed by the respondent firm as assistant solicitor and was given three months notice of termination.  During the notice period she received only one job offer which was subject to a three‑month probationary period and felt constrained to accept it even though she had considerable misgivings about it and was advised against doing so by a member of the respondent firm.  She commenced working in the new job but within two months there were problems and her employment was terminated.  The Employment Tribunal only awarded a compensatory award up to the time that she commenced employment with the new firm and the EAT approved that approach.  However, the Court of Appeal allowed an appeal and remitted the matter back to the Employment Tribunal, holding that a loss consequent upon unfair dismissal does not necessarily cease when an applicant gets employment of a permanent nature at an equivalent or higher salary than the employee previously enjoyed.  The Tribunal had to determine whether the loss in question was caused by the unfair dismissal or by some other cause and the Tribunal had to then ask what amount was just and equitable for the employee to recover.  Beldam LJ giving the judgment of the Court said this:
“20.	Although causation is primarily a question of fact, the principle to be applied in deciding whether the connection between a cause, such as unfair dismissal, and its consequences is sufficient to found a legal claim to loss or damage is a question of law.  The question for the industrial tribunal was whether the unfair dismissal could be regarded as a continuing course of loss when she was subsequently dismissed by her new employer with no right to compensation after a month or two in her new employment.  To treat the consequences of unfair dismissal as ceasing automatically when other employment supervenes is to treat as the effective cause that which is simply closest in time

21.	Causes, in my view, are not simply beads on a string or links in a chain, but, as was said many years ago, they are influences or forces which may combine to bring about a result.  A tribunal of fact has to consider the appropriate effect of the wrongful or unfair dismissal and the effect of the termination of any employment which is subsequently obtained.  That is a function which an industrial tribunal is called upon frequently to perform and, provided it does not regard itself as rigidly bound in every case to take the view that a subsequent employment will terminate the period of loss, it seems to me that it will be able, fairly and equitably, to attribute to the unfair dismissal the loss which has been sustained.”

28.	Finally, in Cowen v Rentokil Initial Facility Services (UK) Ltd t/a Initial Transport Services [UKEAT/0473/07/DA]; the background to the case was that the Claimant had commenced employment with the respondent company in 2001 and was dismissed through redundancy on 6 October 2006.  He obtained a new job on 23 October 2006 at a higher salary than his former job.  The job was initially on a probationary basis, but he was not kept on once the probationary period was over and was dismissed from the second job with effect from 16 January 2007, five months before the Tribunal hearing.  The Tribunal found that he had mitigated his financial loss from 23 October 2006 and could not recover any compensation for the period following his dismissal in January 2007.  The EAT did not agree with this approach.  Elias J, giving judgment of the Court said this:

“52.	We do not agree. In our judgment, the Tribunal made the same error in this case as was made by the Employment Tribunal in the Dench case. They seem to have simply assumed that the obtaining of permanent employment necessarily broke the chain of causation. 

53.	Ms Falade submits that in fact it is obvious in this case any tribunal, properly applying the principles identified in Dench, could only reach the conclusion that the taking of the job for the limited period did not break the chain of causation, and that the Tribunal should have treated the loss suffered after the second dismissal as still causally linked to the first dismissal.  

54.	We agree that in the unusual circumstances here that was the only proper conclusion open to the Tribunal.  We have seen the Claimant’s witness statement.  It contains, we are told by both parties, the only material facts about that job.  It was plainly different to the former job and it came to an end because the Claimant did not satisfy his employers that he was the right man for the job.  Here it was obvious when the job was taken that it may only last for the probationary period, and that is in fact what happened.   

55.	We do not suggest that in all cases the fact that the job was of relatively short duration will inevitably mean that causation is not broken. It depends on all the circumstances. The reason why the employee lost the second job may have a bearing on the question. If it is for culpable misconduct, for example, one can readily see how that might break the chain of causation (although we must emphasise that tribunals must not become embroiled in satellite litigation as to the precise circumstances in which the second dismissal took place).  But there is no evidence or suggestion that that was the situation here.”

29.		Mr Plaut referred us to the Tribunal’s view of the law that they expressed in paragraph 3:
“In our view this guidance is of great assistance in determining issues relating to the loss of earnings but of less relevance in determining when pension loss ceases.  The reason for that is that a pension loss flowing from the original unfair dismissal can continue even though the claimant obtains permanent employment paying an equivalent or higher salary.”

30.	The Tribunal also asked themselves in their conclusions in paragraph 23 whether the correct approach would be to “throw in the pension loss with the loss of other benefits” and then to compare the whole remuneration with the new remuneration package and rejected that approach.

31.	Mr Plaut argues that on the facts of this particular case the Tribunal were entitled to take that approach because of what they described as the loss of a unique type of benefit.  He argues that it was the original unfair dismissal which caused the loss of that benefit and a benefit which could, in the Tribunal’s view, never be replaced in subsequent employment.

Discussion and conclusions
32.	We agree with this approach.  It was, in our view, significant that the Tribunal when comparing the remuneration packages of both employments in paragraph 15 did not attempt to quantify in purely money terms the two different pension schemes and emphasised their unwillingness to adapt that approach in their conclusions in paragraph 23.  They heard evidence from an employment expert and were entitled to form the view that the loss of the final salary pension scheme was a very significant factor the loss of which could not be quantified in purely monetary terms.  In our view the Tribunal were entitled to differentiate between the purely arithmetic exercise in comparing the remuneration packages of the two employments coupled with the permanent qualities of the second employment with Just Retirement and to differentiate those from the significant loss of pension rights.

33.	It is clear from the authorities that a fresh employment does not by itself stop the clock running as far as losses flowing from the original dismissal are concerned and a tribunal is obliged to carry out a proper comparison of the two employments both in purely financial terms and in other benefits which may be incapable of being compared in purely mathematical terms.

34.	It is well known that in a final salary scheme the risk is very much on the employer and the reverse is true as far as the money purchase scheme is concerned and we are quite certain that it was in particular that element of risk the Tribunal must have had in mind.

35.	Accordingly, this ground of appeal does not succeed.

The cross appeal
36.	The other ground of appeal alleges that the Tribunal erred in law by failing to assess the date when the Claimant would have retired from Just Retirement had her employment with the company  not been terminated.  If such assessment had taken place and it led to a finding that she would have retired at a later date than 50 then it is argued that any award would, therefore, have to be reduced.

37.	We see no force in this argument.  Once the Tribunal determined, quite properly in our view, that it was not within their remit to conduct secondary litigation to inquire into the reason for dismissal by Just Retirement it seems to us they were obliged to consider not what would have happened as far as that employment was concerned, but what actually happened up to the date of assessment.

38.	The key issue was the loss of the final salary scheme benefit which would have continued as long as the Tribunal determined that the Aegon employment would have continued i.e. up to the age of 50.  Their task then was to set against that loss any credits arising from any employment over and above the Aegon level of earnings together with an appropriate level of employer’s contributions.  It is clear those amounts were properly credited within the Tribunal’s calculation.

39.	The cross appeal alleges that the Tribunal in assessing a level of compensation in excess of £30,000 failed to gross up the portion of the compensation that exceeded £30,000 being the amount which is exempt from income tax.  In particular, Ms Roberts on the authority of Brander & Ors v Revenue & Customs Commissioner [2007] SSpC 610 in which it was held that compensation for loss of pension contributions were taxable.

40.	Mr Plaut concedes that he did not make submissions about this issue before the Tribunal claiming that there was a shortage of time within the hearing, but contends that in any event the issue of tax is one of those issues that the Tribunal should in any event consider whether or not submissions have been made.

41.	The issue was raised within the review application.  The Tribunal Chairman, in refusing a review on this issue, commented that the topic was never raised or argued at the hearing and no discussion took place.  The Chairman further commented there was no agreement between the parties and the Tribunal as to what the outcome would have been if the issue had been raised.  The Chairman noted that within the compensation guidelines booklet it is suggested that awards made by employment tribunals for loss of pension rights are tax free and that some allowance has been made for the possible effects of tax being payable on the proceeds arising from the investment of the compensation award in determining the financial assumptions used for the rates of return net of earnings and net of revaluation of deferred pension.

Conclusion
42.	There has been no appeal against the review’s refusal to determine this issue.  It seems to us that would have been the appropriate course in view of the fact that the issue was not raised at the original hearing.

43.	For those reasons we are not prepared to determine this issue.  We are hearing an appeal against the original decision, not the review, and the issue of grossing up was not an issue before the Tribunal nor were the Tribunal obliged to deal with it in their judgment in the absence of submissions having been made, particularly as the issue is not agreed between the parties.

44.	For those reasons the cross appeal is dismissed.