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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Benchmark Dental Laboratories Group Ltd v Perfitt [2004] UKEAT 0304_04_0211 (2 November 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0304_04_0211.html Cite as: [2004] UKEAT 0304_04_0211, [2004] UKEAT 304_4_211 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE RICHARDSON
MR D EVANS CBE
MR I EZEKIEL
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR R POWELL (of Counsel) Instructed by: Messrs DLA Solicitors Fountain Precinct Balm Green Sheffield South Yorkshire S1 1RZ |
For the Respondent | MR G HODKINSON (Representative) |
SUMMARY
Unfair Dismissal / Disability Discrimination
This appeal concerned the assessment of future loss of earnings following an unfair and discriminatory dismissal. The Employment Tribunal assessed such loss over an eight year period but it did not deal with "old job facts" – remitted for it to do so. The Employment Tribunal allowed a single 2.5% discount for accelerated payment – remitted with guidance for it to reconsidered.
Kingston upon Hull v Dunnachie No 3 [2004] ICR 227 and
Bentwood Bros (Manchester) Ltd v Shepherd [2003] ICR 1000 applied
HIS HONOUR JUDGE RICHARDSON
The background
The scope of the appeal
Accelerated payment
Employment with Benchmark to retirement
Alternative employment
Dunnachie (No 3)
"…we are entirely satisfied that the Ogden Tables, and any similar such tables which may be devised, should only be relied on by employment tribunals in relation to the calculation of future loss in unfair dismissal claims, so far as concerns loss of remuneration and benefits, if it is sought to be, and once it is, established that there is a prima facie career-long loss. Before their applicability arises, such loss should first be addressed by reference to what we would call "old job facts" and "new job facts", and which we suggest by way of guidance, but in no way in derogation from the obligation of the "industrial jury" to apply section 123 of the 1996 Act:
(i) Old Job Facts would include the following (dependent of course on the particular facts of each case). Would the applicant have remained in the job anyway: and if so for how long? Assuming he or she would otherwise have intended/wished to remain in such job, were there apparent factors, whether personal (health, family situations, location) or economic (new technology, fall-off in orders, lay-offs, redundancies) which on the available evidence, including the experience of the employment tribunal as industrial jury, should be taken into account? Would he or she have taken early retirement, or considered a second career? Would he or she have been promoted? Would his or her earnings have remained stable (other than by reference to the cost of living)?
(ii) New Job Facts. (a) The first question is whether he or she would be likely (after using reasonable mitigation) to obtain a new job at all? If he or she has not yet obtained a new job, what steps (using reasonable mitigation) should he or she now take, and what new job is he or she likely to have obtained, by what date and at what remuneration? (b) The next question is whether (having taken reasonable steps and mitigation) he or she now has a job, but at a pay differential (or would have obtained a job at such differential if/when reasonable steps in mitigation were taken). In the latter case: will he or she stay in that job or (in accordance with the obligations of reasonable mitigation) change jobs to one which is better paid, thereby in whole or in part eliminating the differential? Will he or she be promoted: to the same effect? Will the earnings in the new job be stable (subject to the cost of living) or will they improve: to the same effect?"
Accelerated Payment
"In arriving at the computation which it is proper to require the employer to pay to the employee, it cannot be right to ignore the fact that the employee receiving compensation has the benefit of receiving immediately what he would otherwise have to wait to receive in instalments over the period of loss. The accelerated payment can be invested to produce an additional benefit to the employee during that period of loss. The conventional discount of 5% which one finds referred to in the text books, such as Harvey on Industrial Relations and Employment Law, is designed to reflect, as I understand it, the annual yield that would be obtainable on investment of the sum paid, though it is rather higher than the 4.5% figure which, until fairly recently, was applied in personal injuries cases. Now, by statute, that figure has been reduced to 2.5% for such cases. Of course, if the amounts are very small, tribunals may be excused from introducing this complication; but in principle tribunals ought not to ignore the fact of accelerated receipt."
Gibson LJ went on to say that the annual rate of 5% was out of line with rates used in other areas of law.
Employment with Benchmark – ""old job facts"
Alternative employment
"Sadly Mr Perfitt's future employment prospects as a dental technician are bleak. He has widened his search area to take into account other possible work such as supermarket shelf staking but in both cases where he has submitted applications they have been rejected. In view of his age and disability it appears that his future employment prospects are minimal. It is easy to overlook the very real difficulties that the applicant faces in day to day communication whether oral or written as a result of his disability and the impact of that on his search for work."
"…the Tribunal are entirely satisfied that the applicant is extremely unlikely to find any employment again and have calculated a compensatory award up to his retirement age of 65."
Remission