Parker Foundry Ltd v Slack and Rao v Civil Aviation Authority
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAUGHTON,LORD JUSTICE PETER GIBSON |
| Judgment Date | 17 January 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0117-1 |
| Docket Number | No. EATRF/92/1597/B |
| Court | Court of Appeal (Civil Division) |
| Date | 17 January 1994 |
[1994] EWCA Civ J0117-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Before: The Master of the Rolls (Sir Thomas Bingham) Lord Justice Staughton and Lord Justice Peter Gibson
No. EATRF/92/1597/B
The Appellant appeared in person.
MR. J.R. McMANUS (instructed by R.J. Britton Esq., Deputy Legal Adviser, CAA House, London WC2B) appeared on behalf of the Respondent.
Monday 17th January 1994 .
THE MASTER OF THE ROLLSThis is an appeal by Mr. Rao against a decision of the Employment Appeal Tribunal given on 5th March 1992 ( [1992] ICR 503) and it is an appeal brought with leave given by Balcombe LJ. The respondent to the appeal is the Civil Aviation Authority by which Mr. Rao has been employed since 1969 following several years of service in the Royal Air Force. Since 1974 the Authority has employed Mr. Rao as an Air Traffic Control Assistant Class II. His employment by the Authority has had a slightly chequered history, in particular because of the inordinate amount of time that
Mr. Rao has lost through illness. This, it appears, has caused the Authority acute difficulty, and also appears to have aroused some resentment among his professional colleagues. It is obvious that the duties of an Air Traffic Controller require to be discharged continually night and day, and if one member of the team drops out the others have to cover for him so that one can understand that absences by any one traffic controller, such as Mr. Rao, increase the burden on others. This resentment, according to the evidence, has been exacerbated because of doubts raised as to whether there was any organic basis for Mr. Rao's long and frequent absences. There were some doctors who thought that he was, to put it quite bluntly, a malingerer, and one of them observed that his medical problems appeared to interfere with his work but not with his leisure occupations. It is, however, right to emphasise that other doctors thought that there was, or might be, some organic basis for Mr. Rao's problems, and they took the view that there was perhaps a very low tolerance of pain or discomfort in his case. Mr. Rao himself, it should be made clear, does not accept that he was malingering, or putting it on, or exaggerating his symptoms. He says that his disability was a real and genuine one. Be that as it may, he received a number of warnings in the course of his employment that if he did not mend his ways there would be consequences, and finally on 12th November 1987 Mr. Rao was dismissed. It is right, I think, to say that his dismissal was very largely attributable to his absences from work, but there were other features which contributed, in particular one occasion when he sought leave to go to India on a ground that proved to be spurious.
Having been dismissed on 12th November 1987 Mr. Rao, with the assistance of his union representative, appealed, as he was entitled to do, and on 15th February 1988 his appeal was heard by the Managing Director of the Authority. At that stage Mr. Rao was undergoing a course of rehabilitation which was expected to lead to a medical report. Having heard that, the Managing Director agreed to postpone his decision until the medical report had been received and he had had an opportunity to consider it. After making that agreement, however, the Managing Director learned that Mr. Rao had applied to the Industrial Tribunal for a remedy arising out of his unfair dismissal. Upon hearing of that the Managing Director without more ado on 18th February 1988 dismissed Mr. Rao's appeal.
Shortly thereafter he received the doctor's report and by 8th March had had ample opportunity to consider it. There was, however, no alteration in the decision that had been made that Mr. Rao should be dismissed.
In August 1988 the matter came on for hearing in the Industrial Tribunal which reached the decision that
Mr. Rao had not been unfairly dismissed. Against that decision Mr. Rao appealed. On 12th June 1990 the Employment Appeal Tribunal, under the presidency of Knox J, allowed the appeal on the ground that there had been procedural unfairness in the manner of Mr. Rao's dismissal since the Managing Director, having agreed to postpone his decision, had then failed to do so. Accordingly, the case returned to the Industrial Tribunal for consideration of remedies and that hearing took place on 6th August 1990. The Tribunal declined, for reasons that I need not go into, to make an order of reinstatement, or re-engagement, but held that
Mr. Rao's employment would have continued, but for the unfair dismissal, to 8th March 1988. However, and this is relevant to the issue before the court today, the Tribunal expressed the conclusion that Mr. Rao had only a 20% chance that the employment would have continued thereafter, whatever had happened.
Against that decision Mr. Rao appealed to the Employment Appeal Tribunal and the Authority cross appealed. Those proceedings came before the Employment Appeal Tribunal and on 5th March 1992 the Tribunal dismissed both the appeal and the cross appeal. It is the dismissal of the appeal which is the decision under appeal. Mr. Rao sought to challenge that decision in the Court of Appeal and on 10th December 1992, after a long hearing, Balcombe LJ granted leave to Mr. Rao on the sole issue of the principle which should govern the calculation of his compensation. That is the issue which it now falls to us to consider. I approach it by going back to the Tribunal decision of 6th August 1990 to recite what the Tribunal actually held on this issue. One finds the relevant passage in paragraph 3 of the full reasons of the Tribunal which it is necessary for me to read.
"The parties also asked for guidance as to how we would approach the question of compensation. We said that in our view the correct approach was as follows:—(a) take full evidence about the applicant's loss from February 1988 until the date of the compensation hearing and as to ongoing loss, including evidence as to the applicant's attempts to find other employment or sources of income, and as to such income as he had earned in that period; (b) consider whether there had been any failure to mitigate his loss and, if so, to what date calculation of compensation should be limited on that account; (c) consider what reduction there should be in the basic award and the compensatory award by reference to sections 73(7B) and 74(1) and (6) of the Employment Protection (Consolidation) Act 1978 there being, on the basis of our factual findings in our first decision, a substantial degree of blameworthy conduct; (d) reduce the basic awarded and the compensatory award by the appropriate percentage to take account of blameworthy conduct; (e) to that reduced figure for the compensatory award (but not to the reduced basic award) apply a further reduction of 80% in respect of the period after 8 March 1988 to take account of the fact that there was only a 20% chance of the applicant's employment continuing after that date."
I do not think I need to quote the remainder of the paragraph.
The Employment Appeal Tribunal reviewed that passage and endeavoured to spell out the correct approach to the calculation of compensation in its own words. Wood J, however, giving the judgment of the Tribunal, concluded his review by saying this ( [1992] ICR 503, 516):
"In view of the...
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