SUBMISSIONS, EVIDENCE AND QUANTUM

Barrows v Morgan Sindell Plc [2014] UKEAT/0471/13/DM

I acted for the Respondent in a recent appeal to the EAT which raised an important question

of tribunal procedure. The Claimant was dismissed by reason of redundancy and he claimed

unfair dismissal. The Respondent denied the claim and also argued that the Claimant had

failed to engage with redeployment causing, or contributing, to his own dismissal. However,

Employment Tribunal found that he had been unfairly dismissed due to flaws in the

consultation process but reduced quantum by sixty per cent to reflect contributory fault.

While the judge had indicated from the outset that she would deal with liability and quantum,

as did the hearing notice, the case overran to two days, interspersed by a month. The judge

gave judgement without hearing on quantum and without inviting any submissions on it

specifically. The Claimant immediately requested that he be permitted to address the judge

on contributory fault. The Respondent immediately requested that the judgement be

corrected to reduce the award based on an incorrect schedule of loss. The judge acceded to

the second request and heard further evidence on quantum, concluding the case at 9.15 pm.

The Respondent managed to reduce the Claimed loss from 2 years to 72 weeks on the

basis that the lost benefits may be provided by his new employer at a later date.

Before Her Honour Judge Eady QC, the Claimant sought to challenge quantum on the

grounds that (1) the judge was wrong to decide contributory without hearing from the parties,

especially given her decision to reassess quantum; (2) the judges assessment of

contributory fault was too high; and (3) the judge was wrong to limit the loss without clear

evidence that the benefits would be provided in the future.

The EAT dismissed the appeal and held that while there was considerable pressure on

judges to conclude hearings on the day listed, it would be inappropriate to sit so late. She

found that the tribunal had a discretion in how it managed its proceedings and unlike the

cases of Slaughter v C Brewer and Sons [1990] IRLR 426 and Mercia Rubber Mouldings

v A. S. Lingwood [1974] IRLR 82, the tribunal had given the Claimant the opportunity to

produce evidence on and argue quantum. The tribunal was not obliged to repeat this. The

EAT distinguished the judges decision to re-open quantum as an exercise of perfecting a

judgement based on a schedule which had been assumed to be agreed. Therefore, the

judge was entitled to correct the judgement by allowing further evidence on that point.

Coincidentally, this was necessary only because the Claimants evidence failed to address

quantum.

Secondly, the EAT reiterated that the employees conduct would be considered overall, as

per Maris v Rotherham Corporation [1974] 2 All ER 776. However, on appeal, the

assessment of contributory fault was not liable to be tinkered with, only substituted if it was

perverse: Hollier v Plysu Ltd [1983] IRLR 260.

Finally, the judge was entitled to form a view on the probability of future loss running to its

full course. The issue was that the Claimant had not provided sufficient evidence of what his

current pay and conditions were, making it necessary for the judge to assess the loss on an

inadequate basis and engage is some degree of speculation.

Practice point

The judgement provides some useful practice points. Firstly, practitioners must be careful to

cover all the matters they believe to be in issue in their evidence and submissions. While

submissions on quantum after a decision on liability is common, it is not to be expected

unless the tribunal states this. Secondly, the parties should take care to file accurate

schedules of loss and, in the case of a Respondent, a counter-schedule. Finally, quantum

should always be covered within the Claimants statement unless the tribunal has listed a

split hearing.