Thursday, 3 January 2002


These cases are unreported (although some may be reported in due course). The transcripts were recently posted on the EAT website.

(Lord Johnston, 1st November 2001)
An example of the EAT awarding costs against a party who withdrew an appeal a few days before the hearing. Of interest is the EAT rejecting the argument that lodging an appeal with a view to negotiating a settlement is itself unreasonable or vexatious conduct:
"we recognise as legitimate for an appeal to be taken with a view to achieving a compromise in cases where both sides may reflect their respective weaknesses in achieving such a compromise."

(HHJ Reid, 1st November 2001)
The Applicant, a senior manager at Marks & Spencers, was selected for early retirement and given a retirement package of £151,000 under a discretionary early retirement scheme. The employment tribunal gave credit for this amount to the Respondent when calculating the compensatory award. The EAT held it was right to do so - the ultimate test is what is 'just and equitable' and it would not be just and equitable to ignore the discretionary payment of £151,000. To this extent the EAT distinguishes Parry v Cleaver, which provides that pension benefits should be ignored for the purpose of calculating personal injury compensation, on the basis that this was a discretionary rather than a contractual payment.

(Lord Johnston, 27th November 2001)
When awarding future losses of earnings, a tribunal must state the reason for the period it selects. In this case, the tribunal awarded six months' future loss of earnings without saying why it selected this period. The failure to give reasons was an error of law and the case was remitted to the same tribunal.

(Wall J., 4th December 2001)
The saga continues. After succeeding on liability (following a well-known appeal), Mrs Vento was awarded £166,000 for future loss of earnings, £50,000 for injury to feelings, £15,000 aggravated damages, £9,000 for personal injury and £18,000 interest (total: £258,000). The police force appealed. The EAT held that the tribunal had given inadequate reasons for departing from statistical evidence as to the implausibility of a woman remaining in the West Yorkshire Police Force, and set aside the award for loss of earnings. It also held that the £50,000 injury to feelings and £15,000 aggravated damages awards were so excessive as to be unreasonable, and substituted awards of £30,000 and £5,000 respectively.

(HHJ Peter Clark, 6th December 2001)
The unrepresented Applicant appealed on the grounds he had not had a fair hearing from the tribunal chairman. The EAT rejected his account of what happened at the hearing, and said:

"We would add this. The passing of the Human Rights Act should not be seen as a licence for unruly litigants to misbehave before Employment Tribunals and to then use the appeal process in order to obtain a second bite of the cherry. Speaking for ourselves we shall scrutinise closely any attempt to do so. It is our experience generally that Tribunals sometimes face a difficult task in controlling proceedings in a way which is fair to both parties. Where there are exceptions we shall not hesitate to say so; otherwise, we do not regard it as being part of our function to undermine the need for Tribunals, on occasions, to robustly maintain their judicial authority."

Correction to Previous Bulletin

In the bulletin headed 'Miriki v General Council of the Bar' dated 28th December 2001, I wrongly referred to the decision in Anya v University of Oxford as a House of Lords' decision. In fact, it was a decision of the Court of Appeal.

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