EAT Unfair dismissal compensation – appeal against Judgment on Remedy – ACAS uplift – assessment of loss – holiday pay entitlement and pension benefits – limitation on period of loss
Having previously found that the Appellant had been wrongfully and unfairly (constructively) dismissed and that an uplift of 20% should be applied to the unfair dismissal compensatory award due to the Respondent’s failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2009, the ET proceeded to calculate the compensatory award as from the end of the notice period for which it had awarded damages for wrongful dismissal; it then applied the ACAS uplift. The ET had also previously found that the Appellant was entitled to pay for an earlier period of sickness absence, which she had been required to take as holiday. It had not applied the ACAS uplift to this sum.
Otherwise, in calculating the Appellant’s losses, the ET had not included an element for her paid holiday entitlement and had limited her pension losses to the employer’s contributions up to the period when the ET found the Appellant would have moved on to SSP. The ET had further considered that the Appellant’s loss would have ended upon the cessation of her entitlement to SSP; her employment would either then have ended or she would have moved on to zero pay in any event.
On the Appellant’s appeal on various grounds.
Held: allowing the appeal in part.
On the ACAS uplift:
When calculating the compensatory award in respect of an unfair dismissal claim in circumstances in which there was a concurrent claim of wrongful dismissal, the ET had a choice as to how to approach its task. It could either start at the expiry of the period compensated by the wrongful dismissal award (the course adopted by the ET in the present case) or it could calculate the unfair dismissal compensation from the effective date of termination and then deduct any sum due by way of pay for the notice period. Where the ACAS uplift was only to apply to the unfair dismissal award, this might be a relevant consideration for the ET in deciding which method to adopt. As it was not possible to tell if the ET in the present case had considered this issue, the appeal would be allowed in this respect and the point remitted for reconsideration.
As for the past holiday pay claim, the ET had made no finding that this should be subject to the ACAS uplift and the Appellant’s appeal on this point had been founded upon an error in the Respondent’s Counter-Schedule. That had not been a concession and did not serve to extend the ET’s ruling. The appeal on this point was dismissed.
Paid holiday as part of the post-dismissal losses:
When assessing the Appellant’s losses post-dismissal, the ET failed to include any element for her paid holiday entitlement. As the Respondent conceded, that had been part of the Appellant’s claim and should have been addressed by the ET. The appeal in this regard was allowed.
Pension losses:
The ET had not erred in failing to expressly refer to the booklet, Compensation for Loss of Pension Rights – Employment Tribunals. In any event, it was apparent that it had effectively applied the simplified approach suggested in that booklet, in circumstances in which – given that the ET had found that the Appellant’s employment would, in any event, have ended some time before her expected retirement date – it had been appropriate for it to do so.
As for whether the Respondent would have continued to make pension contributions during the period of SSP, the ET had not referred to the evidence of an earlier period of SSP, during which contributions had continued. In the circumstances, it was unclear whether it had given proper regard to this relevant evidence and the appeal would be allowed on this issue.
Limitation of loss:
The Appellant had also taken issue with the ET’s decision not to make any award for future loss, having found that she would have moved on to zero pay at the end of her SSP entitlement and would have been dismissed before the Remedy Hearing, given her lengthy period unfit for work due to ill-health. That was a permissible finding of a lawful reason for dismissal and the ET’s reasoning was adequately explained. The appeal against this finding was dismissed.
Eady QC HHJ
[2016] UKEAT 0294 – 15 – 3008
Bailii
England and Wales
Employment, Damages
Updated: 01 November 2021; Ref: scu.570389