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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Allied Distillers Ltd v Handley & Ors [2008] UKEAT 0020_08_2110 (21 October 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0020_08_2110.html Cite as: [2008] UKEAT 0020_08_2110, [2008] UKEAT 20_8_2110

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APPEARANCES

 

For the Appellants (EATS/0020/08/BI) Respondents (EATS/0021/08/BI)	MR J MACMILLAN (Solicitor) Messrs MacRoberts Solicitors 152 Bath Street Glasgow G2 4TB
For the Respondents (EATS/0020/08/BI) Appellants (EATS/0021/08/BI)	MR A HARDMAN (Advocate) Instructed by: Messrs Lindsays Solicitors 1 Royal Bank Place Buchanan Street Glasgow G1 3AA


 


SUMMARY

CONTRACT OF EMPLOYMENT: Damages for breach of contract

UNFAIR DISMISSAL: Compensation

UNFAIR DISMISSAL: Polkey deduction

Claimants all dismissed for redundancy in circumstances which respondents accepted amounted to unfair dismissal due to lack of consultation. Appeal by respondent employers re: (a) award to second claimant of a sum in respect of his breach of contract claim in excess of that which parties had agreed was due, and (b) a sum of £5000 awarded to each claimant in respect of a "valuable expectation that if they were threatened with redundancy they would be generously compensated". Cross appeal re: (a) Polkey deduction, and (b) periods in respect of which loss of earnings awarded. Appeal upheld and cross appeal (restricted to Polkey deduction) refused.


 


THE HONOURABLE LADY SMITH

INTRODUCTION

1. These are cross appeals from a judgment of the Employment Tribunal sitting at Glasgow, Chairman Mr HJ Murphy, registered on 9 November 2007. The claimants were all dismissed on grounds of redundancy and it was conceded that they had been unfairly dismissed "due to absence of proper procedure" and in circumstances where the respondents had not complied with the statutory dismissal procedures set out in Schedule 2 to the Employment Act 2002.
2. For the purposes of these appeals, four parts of the judgment are relevant: Firstly, the finding that the second claimant was entitled to payment of a sum in respect of a breach of contract which involved the respondents having failed to give him the notice of termination to which he was contractually entitled (the second claimant was awarded the sum of £6,192 under this head of claim). Secondly, the finding that all claimants were entitled to be paid the sum of £5,000 in respect of what were referred to by the Tribunal as 'enhanced contractual rights'. Thirdly, the finding in respect of the period for which the first claimant was entitled to be compensated for future loss of earnings. Fourthly, the finding that, in any event, the claimants had only a 40 per cent chance of retaining their jobs and that there should, accordingly, be a 60 per cent reduction under and in terms of the principle in Polkey v A E Dayton Services Ltd [1987]. IRLR 503.
3. Before the Tribunal, the claimants were represented by Ms Sabba, solicitor and by Mr Hardman, Advocate, before us. The respondents were represented by Mr MacMillan, solicitor, before the Tribunal and before us.
4. We will continue to refer to parties as claimants and respondents.

BACKGROUND

5. The respondents' business activities include the bottling of spirits at premises in Kilmalid, Dumbarton. In July 2005 Chivas Brothers Ltd ("Chivas"), a company also engaged in the bottling and marketing of spirits, acquired a controlling shareholding in the respondents. Prior thereto, Chivas operated bottling plants in Paisley and Newbridge and once they acquired their interest in the respondents, an investigation into how best the operations of both companies could be integrated was carried out. Early on, Chivas concluded that the operation at Kilmalid was inefficient and more expensive to run than the Chivas bottling plants. They appear, accordingly, to have looked for ways of increasing the efficiency and effectiveness of the Kilmalid operation.
6. The first claimant was the respondents' head of packaging and development. His employment with them commenced on or about 20 October 2003 and he was dismissed on 3 October 2005, with effect from 31 October 2005.
7. The second claimant was the respondents' operations manager. His employment with them commenced on 3 March 1997 and he was dismissed on 3 October 2005, with effect from 31 October 2005.
8. The third claimant was the respondents' head of market services. His employment with them commenced on 1 February 2003 and he was dismissed on 3 October, with effect from 31 December 2005.
9. All claimants were, in terms of their contracts of employment, entitled to six months notice of termination.
10. The claimants' dismissals arose in the following circumstances. In the light of the investigations into the operation of the various plants, the respondents decided to adopt new organisational structures, including the combining of departments, the result of which was to reduce the number of employees that were required. In particular, the reorganisation decision placed the claimants in competition with three Chivas employees for three newly created posts, all of which appear to have been highly responsible posts at senior managerial level.
11. The respondents' position was that the claimants were less efficient than the three Chivas employees. That was a conclusion that was, on the evidence led, reached on the basis that the departments in which the claimants worked functioned less efficiently than those in which the Chivas employees worked, not on any individual assessments of the claimants.
12. In the event, a single criterion was taken into account when deciding who should be offered those posts in the newly structured organisation, namely that of whether or not the candidate in question had previously performed successfully whilst employed by Chivas. None of the claimants could fulfil that criterion. No attempt was made to consider other criteria or to allow the claimants to apply for the posts. Indeed, the respondents had decided to appoint the Chivas employees even before the reports of the investigations had been completed. The three Chivas employees were appointed to the posts. No consultation on redundancy took place. The claimants were all advised that they were being dismissed on 3 October 2005, with termination dates as set out above. That is, they were all given less than six months notice.
13. Little or no thought seems to have been given by the respondents to the claimants' right to be treated fairly. In these circumstances, it is not surprising that the respondents conceded that the claimants had been unfairly dismissed.
14. We also note from the Tribunal's judgment that they found that the three Chivas employees could offer, with their Chivas background, experience in the procedures that they were expected to operate and had contacts both formal and informal within and outwith the Chivas organisation that was valuable to the respondents, qualities which the claimants did not have.

The Tribunal's Judgment

15. Before turning to the particular parts of the Tribunal's judgment that are relevant to this appeal, we should comment on one or two matters of generality. Unfair dismissal having been conceded, the hearing before the Tribunal was a remedies hearing. It proceeded on 15 and 19 December 2004 and 9 February 2005. Parties had, commendably, set out in writing a note of agreed issues/admissions in respect of each claimant's claim. They were four in number and included the first, third and fourth matters raised in this appeal. They did not include the second matter (the awards of £5,000 in respect of loss of "enhanced contractual rights").
16. After having retired for a short period at the close of submissions on 9 February, the Tribunal returned and the Chairman issued an oral decision. He stated that the Tribunal found that the claimants had been unfairly dismissed, that if the dismissal had been conducted fairly there would have been a 60 per cent chance of them remaining in employment (though as he then explained, it was evident that he meant that they found that there was a 40 per cent chance of their doing so), that in the case of the first claimant, they would award future loss of earnings for a period of six months from 9 February 2007, and that in relation to the breach of contract claim they refused the first two claimants' claims but would think about the third claimant's claim under that head. As regards the latter, in response to a query raised by the respondents' solicitor, the Chairman indicated that he may have got mixed up as between claimants. Parties requested that the Tribunal provide written reasons for their decision.
17. The Tribunal then, after some four months, issued what was referred to as a draft judgment under cover of a letter dated 26 June 2007 which invited parties to make further submissions. They declined to do so and we can fully understand why. The Tribunal had made its decision and parties were entitled to be furnished with the reasons for it, in writing. Rather than do so the Tribunal, surprisingly, proceeded to fix a case management discussion for 17 September 2007. Parties did not make further submissions. The Chairman alluded to a mistake having been made which related to unfortunate circumstances regarding the collapse of a computer. The draft judgment had not contained any reference to awards for loss of 'enhanced contractual rights' and, whilst not presenting any argument on the matter, the claimants' solicitor asked whether that sum was in fact part of the sums being awarded. The Chairman said that it was and she advised the Tribunal, as she had done previously, that the claimants made no claim for any such sum.
18. The Tribunal ultimately issued its judgment on 9 November. It included the following awards:

- £6192 to the second claimant in respect of breach of contract consisting of the failure of the respondents to give him the contractual notice to which he was entitled

- compensation for unfair dismissal to the first claimant of the sum of £30,630

- compensation for unfair dismissal t o the second claimant of the sum of £17,970

- compensation for unfair dismissal to the third claimant of the sum of £11,690.

19. The sums awarded in respect of compensation for unfair dismissal were arrived at after allowing the first claimant a period of nine months future loss (despite the oral decision that he was entitled to six months future loss), after adding to each claimant's loss of earnings claim the sum of £5,000 in respect of loss of "enhanced contractual rights" (despite the claimants' solicitor specifically stating that no such claim was being advanced) and after allowing for an uplift of 50 per cent, under s.31 of the Employment Act 2002, for failure to follow the statutory dismissal procedures.
20. The award to the second claimant in respect of breach of contract was made in the above sum notwithstanding the fact that, as the Tribunal recorded at paragraphs 3 and 5, the parties had agreed that only £405 was due to the second claimant under that head. It is a plain error and Mr Hardman, for the second claimant, accepted before us that that was so. He also accepted that the awarding of nine months future loss to the first claimant was erroneous, given the oral decision that that head of compensation would be calculated on the basis of six months loss of earnings.
21. Of perhaps greater concern is the procedural road that the Tribunal decided to follow. They were not following the review procedure set out in paragraphs 34 and 36 of the rules in the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. We cannot fathom on what basis they thought it appropriate to seek to have parties make further submissions to them after they had issued their decision on 9 February or to fix a case management discussion, a procedure which is an interim hearing to deal with matters of procedure and management, not substance. Once they had issued their decision orally, their duty was to put their reasons in written form and issue it to parties. The route that they determined on was not appropriate and appeared to put parties under pressure which they should not have been subjected to, to enter into further debate. It also gave rise, unfortunately, to delay, which we are sure was a matter of concern to both parties. The Tribunal apologise for the delay at the end of the judgment and the Chairman accepts 'some' responsibility for it. An indication is then given that parties or their representatives had also been responsible for the delay but we should, for the record, state that nothing that we have seen or heard indicates that parties or their representatives can be criticised as having been dilatory in any respect during the conduct of this case.

Loss of 'Enhanced Contractual Rights'

22. The Tribunal deals with this at paragraph 124:

"We now refer to the provisions in the contracts of employment of all the claimants whereby they could enjoy enhanced contractual rights. Although in the particular circumstances of this case, the said provisions in the contracts of employment were not operated in such a way as to confer advantage on the claimants, it is easy to see that in certain circumstances the rights conferred by the contract could be extremely valuable, especially in the case of a long-serving , highly paid employee. The claimants had a valuable expectation that, if they were to be threatened with redundancy they would be generously compensated which valuable expectation they have lost, which expectation we value at £5,000. We considered carefully whether this sum should be the subject of reduction, but concluded that it should not. It is difficult to see under what circumstances the claimants would have been dismissed by the respondents for a reason other than redundancy. The whole point of the provisions providing for enhanced payment is that they operate or are intended to operate, on the occasion of a redundancy, and the respondents (sic) have lost the valuable expectation that on dismissal for the reason that was most likely to occur the said provisions would be operated to their advantage."

23. The Tribunal make no findings in fact regarding the terms of the claimants' contracts of employment other than that which provided for six months notice of termination. They make no findings as to any terms of the contract regarding any contractual rights that the claimants would have in the event of redundancy. They included the figure of £5,000 in the sum to which they applied the 50 per cent uplift under s.31 of the 2002 Act. The Tribunal made one finding regarding provision in the contract of employment for an enhanced payment but it relates to the employers' rights:

"18. The respondents reserved the right to require an employee dismissed as redundant to sign a compromise agreement as a condition of making an enhanced payment."

24. That finding appears to reflect the common position whereby a contract of employment contains details of the way in which an employee's redundancy payment will be calculated if but only if he and his employer enter into a separate compromise agreement regarding the terms on which his employment is to be terminated. Such an agreement may or may not be entered into; the employee has no right to require that the employer does so or that he does so on any particular terms. The terms of such an agreement, if reached, will inevitably vary according to the facts and circumstances of the particular case.

Polkey Reduction

25. The Tribunal considered that they required to form some view as to the likelihood that the claimants would have remained in the employment of the respondents if there had been adequate consultation and fair criteria adopted.
26. The relevant findings of the Tribunal regarding this matter can be summarised as follows. The upshot of the adoption of the new organisational structure was that there were three jobs for which six employees were in competition. Three of those employees were the claimants and the other three were persons who had previously been employed by Chivas at a similar level of responsibility. The Chivas employees had performed successfully whilst employed by Chivas. They had experience in the procedures that they would be expected to operate going forward. They had contacts within and outwith the Chivas organisation that would be valuable.
27. In the event, as we have noted, the three Chivas employees were appointed to the posts. At paragraph 109, the Tribunal state:

"Although there can be no doubt that all three claimants are extremely able, it must also be assumed, given the responsibility entrusted to the other candidates for the posts for which the claimants could reasonably have been expected to compete, and the fact that those other candidates have performed well in those posts, that the holders of the posts are extremely able, and it cannot be assumed that the appointment of the claimants to such posts would have been a foregone conclusion. In all the circumstances, we put the claimants' chances of being appointed to the said posts at 40 per cent"

28. Given the context, we are satisfied that the Tribunal have used the word "assume" in the above quoted passage and elsewhere in paragraph 109, as a synonym for "infer".
29. The Tribunal explain that they took the view that the claimants were at a slight disadvantage because of the other candidates' Chivas experience and contacts; hence their 40 per cent assessment. Also at paragraph 109, they continue:

"We also take the view that, though the respondents could not reasonably adopt the criterion for selection that they did, they could reasonably attach weight to the fact that those appointed to the posts were experienced in the procedures that they were expected to operate and had contacts formal and informal both within and out with the Chivas organisation that would be valuable to the respondents. Accordingly we took the view that claimants would have been at a slight disadvantage in any competition for posts and have put their chances of success at 40 per cent."

30. That was, it seems, against a background of the Tribunal otherwise considering that the prospects of the claimants or the Chivas employees being successful were evenly balanced, taking account of their assessment that, in the circumstances, they could infer that all six candidates were extremely able. The Tribunal did not accept a submission for the respondents that the claimants were less efficient or less able than the Chivas employees (and that the Polkey deduction should therefore be 100 per cent). At paragraph 110, they add:

" At first sight it may appear rather surprising that we have put the chances of all the claimants at 40 per cent, and it may appear highly improbable that they would all have had an equal chance of success, had the respondents acted fairly. We accept that there has been something of a blunt instrument about our approach but we do not think that, given the paucity of information put before us, we have a great deal of choice."

The Appeal

31. As we have already observed, it was agreed between parties that the sums awarded to the first pursuer in respect of future loss of earnings and to the second pursuer in respect of breach of contract were wrong and required to be reduced. We turn to the two matters that are left for us to determine.

Loss of Enhanced Contractual Rights

32. For the respondents, Mr MacMillan submitted that there was no basis in law for the award and he also relied on the fact that the claimants' solicitor had made it plain that no such award was sought, the possibility of it having been raised by the Tribunal in the course of submissions. Further, the Tribunal had failed to recognise that the claimants could only qualify for a contractual redundancy payment if a compromise agreement was entered into. The claimants may not, as had happened in the present case, consent to such an agreement. It was not a matter of contractual right. The claimants had a chance of "doing a deal" and thus securing the contractual redundancy payment but it was not a matter of exercising a contractual right. It would be contrary to public policy to inquire into the likelihood or otherwise of such a deal being struck, just as the rule that protected "without prejudice" communications was founded in public policy. In that regard he referred to: BNP Paribas v Mezzotero [2004] IRLR 50, Framlington Group Ltd v Barnetson [2007] IRLR 598, Lunt v Merseyside TEC Ltd [1999] IRLR 458, and Sutherland v Network Appliance Ltd and Anor [2001] IRLR 12.
33. Mr Hardman made no submissions in respect of this aspect of the appeal.

Polkey Deduction

34. For the claimants, Mr Hardman submitted that the Tribunal had misdirected themselves. There should have been no reduction. He referred to the case of Software 2000 Ltd v Andrews and Ors [2007] IRLR 568 and submitted that the Tribunal had engaged in far more than an element of speculation. They had, he said, failed to follow the principles set out in the Software 2000 case. There was no evidence on which they could base their assumption that the Chivas employees were extremely able. There was no evidence of comparison between them and the claimants. There required to be such evidence so that an objective assessment and objective comparison could be made. All claimants were treated the same. No assessment had been made of whether one or more of them might have kept their jobs. The Tribunal did not have to proceed to make the assessment at all.
35. For the respondents, Mr MacMillan submitted that the Tribunal had not erred. The factual background was that this was a "2 for 1" scenario in the context of the reorganisation. Chivas regarded their operation as more efficient and, going forward, wanted the whole operation to function in line with their existing practices. In the case of all three new posts there were two potential candidates for each job, one of the claimants against one of the Chivas employees. The Tribunal found that the Chivas employees had a marginally better chance of being appointed. The best that the claimants could have hoped for was a 50 per cent chance but the Chivas employees had an edge for the reasons explained. The Tribunal had followed the Software 2000 principles.

Discussion and Decision

36. Award for Loss of Enhanced Contractual Rights: We are readily persuaded that we should accept the respondents' submissions. The Tribunal erred in law in making this award. Firstly, not only did the claimants not seek any such award in their claims, their solicitor expressly stated to the Tribunal that they sought no such sum and did not wish the Tribunal to make any such award. It is doubtful whether circumstances would ever be such as to render it competent for a Tribunal to make an award not sought. As regards whether a Tribunal should make an award which a party specifically states he does not seek, the answer is clear: a Tribunal cannot competently make it. Separately, the Tribunal had no basis in its findings in fact for the making of the award. What they refer to is not, on the facts of this case, a matter of contractual right and they are wrong to have approached it as such. The contract was not, on the Tribunal's findings, such as to bind the respondents to make an enhanced redundancy payment to the claimants in the event of their redundancy, such as was discussed in the case of Lee v IPC Business Press Ltd [1984] ICR 306. All that the claimants had was the chance of a redundancy payment calculated in accordance with a particular formula but payable only in the context of employer and employee managing to reach a compromise agreement, the terms and likelihood of which the Tribunal could not predict. The real value of the payment could only properly be assessed in that context. Further, it is likely in a case such as the present that there will have been efforts to reach a compromise agreement prior to the matter reaching a full hearing before the Tribunal. Mr MacMillan told us that there had indeed been negotiations. The course of any negotiations that have in fact taken place may cast considerable light on the approach that employer or employee would be likely to take whenever such circumstances arose and if it did it would be highly relevant to the assessment of the chance of the contractual redundancy payment materialising. It would though also be evidence which would fall to be excluded as inadmissible under the principle that communications made as part of negotiations genuinely aimed at settlement of a dispute are not generally admissible in evidence. The chance of these claimants securing at some future date a contractual redundancy payment was thus a chance which could not be assessed or indeed valued on any proper or sensible basis. We would expect that that would, inevitably, be the case where an employee has no contractual right to an enhanced redundancy payment, only the chance of one if all goes well and a suitable compromise agreement is entered into.

Polkey Reduction

37. We have carefully considered this issue and accept that this was not a case where the Tribunal had a wealth of relevant evidence on the matter. There was, however a reliable factual basis for the Tribunal's conclusions, to use the language of King v Eaton (No 2) [1998] IRLR 686 and Software 2000. Six jobs were being reduced to three. The six candidates could be identified as being the claimants and the three Chivas employees to whom the Tribunal refer. No issue was taken with the Tribunal having so found. The three Chivas employees had performed successfully in their Chivas jobs, jobs which were of a similar status to those performed by the claimants. No issue was taken with that finding. The three Chivas employees had prior experience in the procedures that they would be expected to operate under the new organisational structure. No issue was taken with that finding. The Chivas employees had contacts within and outwith the Chivas organisation that would be valuable to the respondents. No issue was taken with that finding. The Tribunal considered that it would reasonable for the respondents, in the context of a fair redundancy process, to give weight to those factors. No issue was taken with their reaching that conclusion. Mr Hardman took issue with the Tribunal's conclusion that the Chivas employees were, like the claimants, extremely able. We do not accept his submission that there was no evidence on which the Tribunal could properly base that conclusion. They rely on the Chivas employees positive track record, having performed successfully in the past and on their having, as a matter of fact, been entrusted with the responsibility of the new posts. On the basis of those facts, it was open to them to infer, as they evidently did, so far as ability to do the jobs was concerned, that the men were all equally well placed.
38. In these circumstances, we do not accept Mr Hardman's submission that the exercise was simply too speculative. Nor do we accept his submission that in a redundancy case it is a pre-requisite to making a Polkey deduction that a person to person comparison exercise be carried out. It is very much a matter for the impression and judgment of the Tribunal (see: Software 2000 Ltd at paragraph 54) in circumstances where they should not be unduly reluctant to engage in the process (see: Software 2000 Ltd at paragraph 38) and this Tribunal should, as it was put by Buxton LJ in Gover v Property Care Ltd [2006] EWCA Civ 286 [2006] 4AER 69:

" … tread very warily when it is being asked to substitute its own impression and judgment for that of the tribunal …." (paragraph 22)

39. Mr Hardman's submission came close to saying that the Tribunal should not have embarked on the Polkey exercise because it could not accurately predict what would have occurred in the event that a fair redundancy process had been worked through. But that is to pose the wrong question. As was commented again by Elias P in Software 2000 Ltd:

"53. The question is not whether the tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice. It may not be able to complete the jigsaw but may have sufficient pieces for some conclusions to be drawn as to how the picture would have developed. For example there may insufficient evidence or it may be too unreliable, to enable a tribunal to say with any precision whether an employee would, on the balance of probabilities have been dismissed, and yet sufficient evidence for the tribunal to conclude that on any view there must have been some realistic chance that he would have been. Some assessment must be made of that risk when calculating the compensation even though it will be a difficult and to some extent speculative exercise."

40. On reading the Tribunal's judgment including its own acknowledgment of using something of a "blunt instrument" approach, we can accept that they were conscious that they were carrying out a difficult and to some extent a speculative exercise but that is not to say that they were falling into an error of law as is so well explained by the above discussion. On the contrary, they were doing their job, albeit that it was one which was not easy. As was said by Pill LJ in Scope v Thornett [2006] EWCA Civ 1600 [2007] IRLR 155:

"The EAT appear to regard the presence of a need to speculate as disqualifying the an employment tribunal from carrying out its statutory duty to assess what is just and equitable by way of compensatory award. Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and tribunals are very familiar with making predictions based on the evidence they have heard. The tribunal's statutory duty may involve making such predictions and tribunals cannot be expected or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation …" (paragraphs 36-8)

41. Pill LJ did allow for the possibility of the evidence being so sparse that the conclusion has to be that the employment would have continued indefinitely but:

"where there is evidence that it may not have been so, that evidence must be taken into account" (paragraph 34).

42. We would venture to add to these considerations that the evidence should not be regarded as so sparse as to preclude the Polkey exercise simply because there could have been more of it. The question rather is whether on the facts found a Tribunal can, as a matter of its judgment and impression, reach the conclusion that there was a chance that the employee would not have continued indefinitely in the employers' employment. If it does so, then the risk assessment exercise above referred to, blunt instrument though it may well be, requires to be followed through.
43. As we have indicated, there was relevant evidence in this case which entitled the Tribunal to draw the conclusions that it did. It was not a case where the evidence was so sparse as to leave the Tribunal with a speculative exercise about which it could take no sensible view. The view that it took was logical, fact based and is explained. Moreover, it gave due recognition to the extent to which the claimants had abilities of high quality to offer. The decision was not that they had no or little chance of securing the jobs. The chance of their doing so was, at 40 per cent, assessed at a level of some substance. We cannot see that there is any basis on which we could properly interfere with the Tribunal's approach and assessment on this matter.

Disposal

44. In the result the awards made cannot stand. We do not, however, consider that it is necessary to remit the recalculation of the awards to the Tribunal. There is sufficient material in the Tribunal's findings for us to carry out that exercise.
45. Bearing in mind the two matters on which parties are agreed and the two issues that we have determined, we will pronounce the following orders:

1. an order upholding the respondents' appeal in respect of the award of £6194 to the second claimant and substituting for it an award of £405;

2. an order setting aside the award of £30,630 to the first claimant and substituting for it an award of £19,563.90. That figure has been arrived at after allowing for six months future loss instead of nine months (an exercise that affects both the loss of earnings and the pension loss figures and the consequential post Polkey deduction figure) and deducting £7,500 in respect of the award in respect of loss of enhanced contractual rights taking and the 50 per cent uplift thereto.

3. an order setting aside the award of £17,970 to the second claimant and substituting for it an award of £10,470. That figure is arrived at by, again, allowing for deduction of £7,500 in respect of the award for loss of enhanced contractual rights.

4. an order setting aside the award of £11,690 to the third claimant and substituting for it an award of £4,189.50, a figure which is again arrived at by deducting £7,500 in respect of the disallowed award for loss of contractual rights.