Unfair dismissal – remedies – reinstatement, re-engagement – compensatory award – Acas uplift
The Claimants were dismissed from their jobs as passenger service operatives after allegations had been made that they had bullied, harassed and intimidated new starters who were working in the same team. Having upheld the Claimants’ claims of unfair dismissal, the Employment Tribunal went on to consider remedy. Recording that Mr Gavli was seeking reinstatement but Mr Ali was only seeking compensatory relief, the ET accepted the Respondent’s case that reinstatement or re-engagement would not be practicable: the unchallenged evidence was that working relationships had irretrievably broken down. On the question of compensation, the ET took account of the buoyant local economy at the relevant time and concluded that the evidence demonstrated that neither Claimant had taken reasonable steps to mitigate their losses; had they done so, they could have found alternative employment within three months. Although both Claimants said they had suffered prejudice as a result of their dismissals by the Respondent, the ET found that was not the reason why they had not found other work: in both cases, there was little evidence that they had applied for alternative employment. Both Claimants had claimed an uplift of 25% for failure to comply with the Acas Code but their counsel had not specified the particular provisions relied on; in the circumstances, the ET made no uplift. The ET also recorded that claims for pension losses had been included within the Claimants’ schedules of loss but this had not been particularised and it declined to make any award under this head. Having reached its determination on the various heads of claim, the ET made compensatory awards, setting out the prescribed period in each case
The Claimants appealed against the ET’s remedy decision.
Held: allowing the appeal in part
The ET had not erred in its decision on reinstatement or re-engagement. It had first considered this possibility in Mr Ali’s case but recorded that he was only seeking a compensatory remedy. As that was the way his case had been put below, the ET did not thereby err in failing to further consider the question of reinstatement or re-engagement in his case. As for Mr Gavli, criticism was made of the ET for failing to consider the question of practicality in the light of the case of another employee, DR, who had faced similar allegations but had been transferred to work at another terminal. This was, however, not a point that had been made below. Although DR’s case was referenced, it was not suggested his circumstances were so similar to those of the Claimants as to give rise to an inconsistency of treatment that rendered the dismissals unfair. Moreover, although the Claimants were aware that DR had been kept on, his case was not relied on to support the claim for reinstatement or re-engagement. This ground of appeal was dismissed.
Mr Ali also challenged the ET’s decision on the basis that it had not taken into account the fact that he could have continued to work (part-time) whilst undertaking pilot’s training. The ET’s reasoning made clear, however, that it had this in mind but found his failure to mitigate his losses arose from his failure to continue to apply for work. No error of approach was disclosed; this ground of appeal was dismissed.
Both Claimants challenged the ET’s refusal to consider the question of an uplift for failing to comply with the Acas Code. Although the Claimants had failed to specify the particular provisions of the Code relied on in their submissions before the ET, Mr Ali’s ET1 had provided some particulars in this regard and both Claimants had included claims for an uplift in their schedules of loss. Claims under section 207A Trade Union and Labour Relations (Consolidation) Act 1992 were thus before the ET and there was nothing to suggest that these had been withdrawn. As the Respondent acknowledged, the ET’s findings on liability also allowed of the possibility that there had been breaches of the Acas Code. In the circumstances, the ET erred in its failure to consider this element of the claims.
The final two grounds of appeal related solely to Mr Gavli. He first objected to the prescribed element to the compensatory award, explaining that the universal credit he had received also related to his wife. Secondly, he complained that the ET had failed to make any award in respect of his loss of pension benefits. In relation to the first of these points, this was not a matter raised before the ET and did not, in any event, relate to any aspect of the ET’s decision. As for pension loss, this had been included as a heading within Mr Gavli’s schedule of loss; although not further particularised, the Respondent’s counter-schedule had provided the relevant calculation of this loss. Given that it was not disputed that this was a loss suffered by Mr Gavli, an injustice arose from the ET’s failure to make an award under this heading. Although Mr Gavli’s lawyers may not have properly particularised this element of the claim, it had not been withdrawn and the ET was in a position to make an award on the basis of the undisputed figures given by the Respondent. The overriding duty on the ET was to make an award that was just and equitable in the circumstances; in discounting the claim for loss of pension benefits, it had failed to do so. This ground of appeal would also be allowed.
The Honourable Mrs Justice Eady DBE
[2021] UKEAT 0012 – 21 – 1905
Bailii
England and Wales
Employment
Updated: 18 January 2022; Ref: scu.666678
