The claimant, who was dismissed through redundancy, worked as a teacher with the respondent. The ET found that his dismissal was unfair and the judgment was entered in default in the absence of the respondent, who were debarred for failing to file an ET3.  The default judgment was not set aside because the ET did not think that the respondent would be able to successfully respond to the claim of unfair dismissal. The claimant was awarded limited compensation because the ET considered that he would have been dismissed at the latest 6 months later. The claimant appealed.

The EAT upheld the appeal. The ET had decided on the limited compensation on the basis of a submission not evidence. The case was remitted to another ET to consider again the basis upon which the compensation should be awarded.

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Appeal No. UKEAT/0548/10/SM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 26 August 2011

Before

HIS HONOUR JUDGE PUGSLEY (SITTING ALONE)

MR G CLARKE (APPELLANT)

THE GOVERNING BODY OF HASMONEAN HIGH SCHOOL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR C HUTCHINSON (of Counsel)

Instructed by:
Association of Teachers & Lecturers
Legal Services Dept
7 Northumberland Street
London
WC2N 5RD

For the Respondent
Debarred

UNFAIR DISMISSAL – Compensation

The Respondent employer, a school, was debarred from defending, and the Employment Tribunal found that Claimant was unfairly dismissed. The ET found that the Appellant would have been dismissed - not on the basis of evidence but as a result of a submission. Case remitted to another ET to consider again basis upon which compensation awarded. Complicated by fact Appellant now deceased.

1. This is a case in which Mr Clarke succeeded in an action for unfair dismissal against his former employers, the Governing Body of Hasmonean High School. The Judgment was entered in default as the Respondents had not entered an ET3. The Judgment of the Employment Tribunal was in very terse terms. The decision was promulgated on 4 May 2010, the hearing having been on 12 April 2010.

1. The main body of the decision is concerned with the fact that the Respondents had not filed an ET3 and the reasons why the Tribunal did not set aside the original default Judgment. The findings are set out in paragraphs 15 and 16, and they are in extremely limited form. In paragraph 15:

"This led the Tribunal to believe the redundancy reason was somewhat mixed and conflated with the other reasons for dismissal."

1. In paragraph 16:

"The substantive and procedural failings on the parts of the Respondent (applicant) meant the Tribunal reached the conclusion that the Respondent did not have a reasonable prospect of success responding to the claim. It was not a hopeless situation but the Tribunal did not think that it would be able to successfully respond to a claim of unfair dismissal. Accordingly the default Judgment was not set aside."

1. The Tribunal then went on to consider the question of compensation and states as follows:

"18. The Claimant was taken on at the age of 67 and was dismissed at the age of 69. His intention was to continue for a few years after the dismissal.

19. The Claimant was dismissed with immediate effect from 24 July 2009 at the age of 68. He had been employed for one full year. Therefore, there is a basic award of £525."

1. There seems to be a mismatch between whether he was dismissed at 68 or 69 depending on whether you look at paragraph 18 or 19. The Tribunal then said, as far as the compensatory award:

"20. The Claimant claimed one year's pay as compensation. The Respondent maintained that no compensation was payable as he could have been dismissed fairly and with no injustice.

21. The Respondent, in its cross examinations and submissions was effectively saying that the Claimant was not very good at his job. Although Mr Curzon did not say it explicitly, what he was effectively driving at was that the Claimant would have been dismissed in any event shortly after the date, which he was. The Claimant maintains through his representative that there is no reason why [he] should have been dismissed and that the Respondent had not made out clearly the evidence which justified the dismissal […]."

1. The Tribunal went on to say they found it a difficult case to assess; however:

"22. […] given that the Respondent clearly had new arrangements imposed upon it by statute it did need to make some changes. While it was confused and muddled in its approach to the Claimant's dismissal we believe that had it considered the case properly and taken the proper advice that the Claimant would have been dismissed by the latest December 31 2009. The loss is therefore assessed to that date. […]"

1. The point that is made is that this Tribunal did not hear evidence from Mr Curzon. According to the affidavit sworn by the person representing Mr Clarke, there was merely assertion and not evidence. The reply by the Employment Judge to the review, in my view, falls into error where it says:

"The […] judge has considered the application and looked at the judgment carefully and concluded that the application is misconceived as most of the judgment is based on forecasts as to the future rather than simply on facts as found. This is often necessary for a tribunal to decide."

1. With great respect, all over the country tribunals and courts are having to determine a whole range of issues about future employment prospects, future course of a traumatic injury, and so on. They do so by hearing evidence, and in this case what the Tribunal did was, as I find on the body of the matter, not to hear evidence but to allow untested assertions. There needs to be some form of concrete finding of primary fact before a tribunal can reach a decision about the fact that Mr Clarke would in any event have lost his job. The Employment Judge's comments are these:

"I cannot recall very clearly what happened on that day as it is over a year ago. However, my comments are quite obvious based on what was said in the Affidavit. It is clear that Mr Curzon did not desire to give evidence which is why he did not take the oath or affirm. Indeed he made legal submissions which of course are not subject to oath or affirmation and it was up to him to decide whether he wished to give evidence.

So far as I can recall if in the course of crossexamination and indeed submissions points were made which I thought were valid, I would have taken them into account to determine the compensatory award but would not have decided anything adverse to a party without giving the other party an opportunity to comment on it."

1. I am afraid I do not think that is really the appropriate way of dealing with matters. We can all recognise that which we cannot define, namely a point at which a person is giving evidence and a point at which a person is making a submission. Submissions are about inherently general matters, but this was a specific finding about the Claimant. Therefore I allow the appeal, and I send it back to a different Tribunal to determine the issue of compensation. The Employment Tribunal should hear evidence and make findings of fact about how long it considers the Claimant would have continued to teach.

1. I am told that Mr Clarke has recently died. In these circumstances I trust that there will be attempt to resolve the matter.