Armitage Rest Homes Ltd (t/a Fairview Residential Home) v Begum

An employment tribunal assessing compensation for unfair dismissal may reach a practical evaluative conclusion on loss and mitigation from limited evidence. The tribunal may accept that alternative employment did not replace the dismissed employee’s lost work, while making appropriate deductions for earnings made possible by the dismissal. An appellate court should not interfere merely because the evidence could have supported a different assessment. Permission to adduce fresh evidence should be refused where the material would not establish an arguable error of law or materially affect the appeal.

Mrs Begum was found by an Employment Tribunal to have been unfairly dismissed from part-time weekend work at a residential care home. Her claims of race and sex discrimination were dismissed. At a remedies hearing, the tribunal awarded a basic award of £194.40 and compensation of £2,206, assessing 40 weeks’ loss, deducting £486 earned at another home, and making no award for future loss.

The employer sought permission to appeal to the Court of Appeal from the Employment Appeal Tribunal’s decision of 12 September 2001 refusing permission to adduce fresh evidence. It also alleged that the tribunal had erred in law and lacked sufficient evidence for its assessment. The central issues were whether the tribunal’s approach to loss and mitigation disclosed an arguable error of law and whether the fresh evidence could justify a rehearing.

1. Application refused. The Court of Appeal found no arguable error of law in the Employment Tribunal’s assessment and no basis for directing a rehearing.
2. Employment Tribunals and courts may have to assess compensation for loss of earnings on limited information. Even assuming that the employee had been uncooperative or unfrank in presenting information, the tribunal was entitled to make the evaluative judgment it reached after considering the evidence and arguments.
3. The tribunal was entitled to conclude that Mrs Begum’s weekday work at Emm Lane Nursing Home did not substitute for her weekend work at Fairview. It could therefore assess loss by reference to the Fairview earnings. It was also entitled to deduct the £486 earned at Greystones Nursing Home because that work was possible only because she was no longer working at Fairview.
4. The tribunal’s approach to mitigation was lawful. It could conclude that, with reasonable dispatch, alternative employment should have been obtained by the remedies hearing, limit past loss to that date, and refuse compensation for future loss. The possibility that it might have found greater or lesser loss did not disclose an error of law.
5. The fresh evidence, including a letter stating that Mrs Begum worked approximately 36 hours per week at Emm Lane, did not assist the proposed appeal. It did not show that she could not also have worked the lost weekend shift. The Employment Appeal Tribunal was entitled to regard it as incapable of affecting the position.

• Court of Appeal (Civil Division): refused the application for permission to appeal and declined to order a rehearing.
• Employment Appeal Tribunal: on 12 September 2001 refused permission to adduce fresh evidence in the employer’s appeal concerning the level of compensation.
• Employment Tribunal: found that Mrs Begum had been unfairly dismissed, awarded £194.40 as a basic award and £2,206 as compensation, and dismissed her race and sex discrimination complaints.