1. By a decision dated 25 May 2011 ("the Liability Decision"), an Employment Tribunal sitting in Cardiff held that Mr Mark Howley ("the Claimant") had been unfairly dismissed by Commercial Motors (Wales) Limited ("the Respondent"). This Employment Appeal Tribunal dismissed the appeal by the Respondent. By a further decision of the Employment Tribunal sitting in Cardiff dated 4 November 2011 ("the Remedies Decision"), the Employment Tribunal also sitting in Cardiff awarded the Claimant a total of £44,579.02.

1. The Respondent appeals against parts of that award and in particular on the grounds that the Employment Tribunal: -

(a) Should not have awarded the sum of £3,993.36 and £300 respectively for (i) the loss of use of the executive car during the three-month contractual period to which the Claimant was entitled; and (ii) the loss of fuel allowance during that period;

(b) Should not have awarded the sum of £96 in respect of the loss of a mobile telephone during the three-month contractual period to which the Claimant was entitled;

(c) The Employment Tribunal failed properly to apply section 123 of the Employment Rights Act 1996 ("ERA 1996") and so made a material error of law; and that

(d) The award in respect of loss of earnings was excessive and one which no reasonable Tribunal could have reached.

1. The Claimant cross-appeals on the grounds that the Employment Tribunal erred by: -

(a) Failing to award him the sum of £840 for the cost of a training course;

(b) Refusing to award him compensation under section 123(1) and/or section 123(2)(b) for the loss of a company car, fuel allowance and the loss of a company mobile beyond the notice period;

(c) Failing to apply the principles applied by the Court of Appeal in Chagger v Abbey National plc [2010] IRLR 47; and

(d) Failing to consider the mitigation issue correctly.

1. Mr Anthony Korn, counsel for the Claimant, stated that if the decision of this Appeal Tribunal is not to remit the case to the Employment Tribunal in respect of any of the grounds put forward by the Respondent, then in those circumstances he would not be pursuing grounds (c) and (d) of his cross-appeal. Mr Christopher Over, the advocate for the Respondent, has explained in respect of his grounds of appeal that if he succeeds on any of them, then this Tribunal should itself make the changes to the award rather then remitting it to the Employment Tribunal. I should explain that it was initially agreed that this appeal should have been heard by the same members of Employment Appeal Tribunal, who heard the appeal from the liability decision, but this was not possible because Baroness Drake of Shene was unfortunately taken ill shortly before the hearing. Both advocates then sensibly agreed that this appeal could, in those circumstance, be heard by only two members, and that is what has happened.

1. The background to the decision under appeal is that the Claimant commenced his employment with a predecessor company of the Respondents. There had been an effective transfer of the Claimant's contract of employment under the Transfer of Undertakings Protection (Employment) Regulations 2006 to the Respondent and the Claimant was then dismissed on 3 February 2009. At the Remedies hearing, the Claimant received in respect of his loss during the three month contractual notice period to which he was entitled, (i) £3,993.36 in respect of the loss of an Executive car; (ii) £96 in respect of the loss of a mobile phone; and (iii) £300 in respect of the loss of a fuel allowance during this period. He was also awarded a compensatory award in the sum of £20,010.75 which was net of the 50% Polkey reduction, as well as the sum of £6,003.23 in respect of the 30% increase to be applied to the compensatory award because of the Respondent's failure to complete the statutory procedures set out in Part 1 of Schedule 2 of the Employment Act 2002. It will be seen from this that the Claimant had both contractual and statutory claims.

1. In the Liability decision, the Employment Tribunal found that:-

"he was entitled to an executive car plus fuel under his contract of employment. Whether that finding gives rise to a quantifiable head of loss for the claimant is a matter that will be returned to the Remedy hearing."

1. The Employment Tribunal concluded at the Remedies hearing that the Claimant had been provided with a Mercedes 220 CDI motor car with a market value of around £26,000 and as a result of the wrongful dismissal he had lost the use of the car.

1. Mr Over contends that the Claimant is not entitled to recover more than he has actually loss as all that the Claimant had lost was the use of a pool car supplied from one of the other companies belonging to Mr Williams, who is the owner of the Respondent, but that the availability of such a vehicle from one of Mr Williams' other companies ended on 6 January 2009, when the group of companies owned by Mr. Williams went into administration. So he says that the Claimant should not recover the benefit of the use of a car from that day onwards.

1. In our view, this submission fails to appreciate that the Employment Tribunal at the liability hearing had found that the Claimant was entitled to three months' notice and that he had the right to the use of an executive car. Thus the Claimant is entitled to be compensated for that three-month period subject to the points set out in the next paragraph.

1. It is common ground that the Claimant had the benefit of an Astra SRI together with fuel for a period when he was working for W G Davies but the Employment Tribunal stated that the Claimant was employed by that firm "for approximately 2 months … the precise dates of this employment were difficult to discern" (Paragraph 11(vi)). There are invoices in the bundle which show that the Claimant made claims for the Astra from 1 March 2009 to 9 April 2009. In our view, he is not entitled to make claims loss of the executive car and of the fuel allowance for that period which is approximately four-ninth of the period claimed. In those circumstances, we conclude that the sums awarded for loss of the executive car and of the fuel allowance of £3993.36 and £300 will have to be reduced by four-ninth to £2218.50 and £166.65 respectively. We have explained that the parties agreed that we should make the reductions ourselves rather than remit it to the Employment Tribunal.

1. The Respondent contends that the finding that the Claimant must be compensated for the loss of the phone was perverse and that it was not supported by the evidence.

1. The Employment Tribunal found that the Claimant had a contractual entitlement to a company mobile phone and as a result of his wrongful dismissal, he was deprived of the use of it because he was asked to return it. The case for the Respondent was that the Claimant was offered an alternative phone, but it was implicit in the finding of the Employment Tribunal that they rejected this point.

1. It is true that this finding was not expressly stated in the Employment Tribunal's decision, but it is settled law that, as Bingham LJ explained in Meek v City of Birmingham District Council [1987] IRLR 250, an Employment Tribunal's decision:-

"should contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic, factual conclusions" [but the reasons are] "not required to create an elaborate product of refined legal draftsmanship."

1. In addition, Donaldson LJ said in Union of Construction, Allied Trades and Technicians v Brain [1982] IRLR 22 that:-

"I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought upon any such analysis. This, to my mind, is to misuse the purpose for which reasons are given."

1. The application of those principles means that decisions of an Employment Tribunal should be construed as meaning that a replacement phone was not offered to the Claimant. In any event, the finding of the Employment Tribunal on this issue does not go anywhere near reaching the high standard for perversity as set out in Yeboah v Crofton [2002] IRLR 634, in which Mummery LJ famously said in a passage, which has frequently been followed in respect of appeals based on perversity, that: -

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached."

1. The case for the Respondent falls a long way short of satisfying that requirement, as there was adequate material to justify the conclusion of the Tribunal.

1. The background to this is that after the Claimant left his employment he worked for a short period for W G Davies before leaving that employment. The case for the Respondent was that the employment by the Claimant with W G Davies should act as an automatic guillotine of the Claimant's claim for damages, because of the wording of section 123 of the Employment Rights Act 1996 ,which provides in so far as is material, that: -

"123 Compensatory award

(1) Subject to the provisions of this section and sections 124, 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…

(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

1. The case of the Claimant, as set out in his second witness statement, was that he was engaged on a short-term two-month consultancy with W G Davies and that he received £2.456.01 for this engagement. The Employment Tribunal rejected the Respondent's case that this work with W G Davies broke the chain of causation and it was "15…satisfied… that the primary cause of the claimant's ongoing loss of earnings after leaving W.G Davies was his dismissal by the …respondent". The Employment Tribunal gave credit for the sum received from W G Davies in paragraph 12 of the Remedies Decision.

1. This approach is consistent with the leading case of Dench v Flynn & Partners [1998] IRLR 653, in which Beldam LJ explained at page 655 that: -

"19…No doubt in many cases a loss consequent upon unfair dismissal will cease when an applicant gets employment of a permanent nature at an equivalent or higher level of salary or wage than the employee enjoyed when dismissed. But to regard such an event as always and in all cases putting an end to the attribution of the loss to the termination of employment, cannot lead in some cases to an award which is just and equitable."

1. He continued by saying that:-

"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."

1. Mummery LJ agreed, as did Sir Christopher Staughton, who also added that the test was:-

"That is the ordinary common sense test of the common law. Was the loss in question caused by the unfair dismissal or by some other cause? The tribunal must ask itself and answer that question, and then ask what amount it is just and equitable for the employee to recover. Rules will no doubt help as guidance in the process, but that is the task which ultimately has to be undertaken."

1. The approach of the Employment Tribunal was wholly consistent with what was said in that case, especially as the Claimant was engaged on a short-term two-month consultancy with W G Davies and not as a permanent employee as envisaged in Dench. Indeed, it noteworthy that Dench has been followed in many other cases, such as Cowen v Rentokil Initial Facility Service Ltd ([2008] UKEAT 0473), in which Elias P held that when the claimant, who had been unfairly dismissed, took a job for a limited period, the chain of causation arising from the loss caused by the original dismissal had not been broken.

1. We therefore reject this ground of appeal.

1. The case for the Respondent is that the award is excessive not only for the point relating to W G Davies, which we have already dealt with in the previous paragraph, but also because (a) the Claimant held himself out as a Sales and Marketing Director for Forward Employment Services Ltd from 2010; (b) he "had a limited company called Howley Car and Truck Limited"; and (c) the Employment Tribunal had found that the Claimant had not made genuine efforts to find alternative employment.

1. As to (a), it is correct that this was the way in which the Claimant described himself on a job application form, but the Claimant in his witness statement for the Employment Tribunal hearing explained that he "was involved on a 'commission only' basis with Forward Employ". He then said that he had received £431.85 commission. In the remedies judgment, the Employment Tribunal accepted the Claimant's account, and that was a decision open to it as an industrial jury. There is no error of law in that reasoning and the Employment Tribunal was correct not to have reduced the compensation payable to the Claimant by the sum of £431.85, which was received by him from Forward Employment Services Ltd as it was all payable in respect of the period after the compensation period came to an end in February 2011.

1. As to (b), there was no evidence that the Claimant had received any income from Howley Car and Truck Limited and so that ground of appeal has to be rejected.

1. As to (c), the Employment Tribunal held that the Claimant had not mitigated his loss and that if he had done so, he would have obtained employment within 12 months of his dismissal and returned to his pre-dismissal level of earnings within 2 years of his dismissal. There is no reason to consider that this was not a decision open to the Employment Tribunal, and this shows that the Tribunal did not make an error of law in dealing with this issue.

1. The contention of the Claimant was that the Employment Tribunal erred by not awarding him £840 for the cost of a training course for Internet design, which lasted two days. The Employment Tribunal had held that it was too remote.

1. Mr Korn submits that this sum should have been recoverable under section 123 (1) of the ERA 1996 as expenses reasonably incurred by the Claimant in consequence of his dismissal. This argument was rejected by the Employment Tribunal, and they were entitled to do so. This ground of cross-appeal fails.

1. Mr Korn submits that there was no reason why these claims should only have been upheld by the Employment Tribunal for the duration of the Claimant's notice period and indeed, it should have awarded them after the notice period.

1. The Employment Tribunal rejected these claims for the post-notice period because it considered that: -

"17…. there was simply insufficient information before the Tribunal for the view to be taken that it was just and equitable to include those claims within the compensatory period."

1. The reason for that conclusion were that: -

"There was no evidence before the Tribunal that the claimant's private annual mileage would have continued at pre-dismissal levels. There was evidence that he had acquired an alternative vehicle, albeit not an executive car, but there was no evidence from the claimant as to why the loss of a prestigious vehicle was of any particular value to him. In respect of the loss of use of the company mobile phone, there was no evidence at all as to how many minutes per month the claimant used his company mobile for private calls prior to his dismissal and no evidence as to the usage made by the claimant of his own mobile phone for private calls after his dismissal. It was accordingly impossible for the Tribunal to calculate the ongoing loss of the mobile phone, after the 3-month contractual notice period, in a meaningful way and accordingly the submission that the compensatory award should reflect, in some way, the loss of use of the company mobile phone was rejected."

1. We consider that these conclusions were open to the Employment Tribunal, which had the responsibility for determining facts. So there is no error of law in those conclusions.

1. As we have explained, Mr Korn accepts that, as we will not remit the case to the Employment Tribunal in respect of the Respondent's grounds of appeal, he does not in those circumstances wish to pursue grounds (c) and (d) of his cross-appeal, and so we will not say anything more about them.

1. For the reasons we have set out, the appeal is allowed solely to reduce the compensation awarded to £2218.50 and £166.65 respectivelyfor the use of the car and of the fuel allowance during the period in his notice period when he was provided with the Astra motor car and a fuel allowance. All the other grounds of appeal and the cross-appeal are dismissed. We cannot part with this appeal without expressing the hope that this case is now regarded by all parties as finally determined and that no further expense is incurred in more court appearances.