VICTIMISATION DISCRMINATION
UNFAIR DISMISSAL – Automatically unfair reasons
UNFAIR DISMISSAL – Polkey deduction
UNFAIR DISMISSAL – Compensation
The Claimant before the Tribunal had brought proceedings principally for protected interest disclosure and dismissal, and also so-called ordinary unfair dismissal, wrongful dismissal and holiday pay.
The allegations were wide ranging and concerned the Claimant’s employment as a Special Needs Primary School Teacher in a specialist autistic unit attached to a primary school. The Claimant, who is an American citizen, came to the UK on a three year contract of employment as a sponsored Tier 2 Migrant Visa. The post had been identified nationally as a skilled job which could not be filled by a settled worker.
The Claimant made a number of complaints and allegations during the course of her employment. She did not ask the Respondents to apply to renew her visa and the Respondents decided that it would not take any steps to do so of its own volition and decided not to ask her if she would like them to apply on her behalf.
She was dismissed on the date her fixed term contract ended which was the date her Tier 2 Migrant Visa was due to expire. At the Employment Tribunal hearing, the Tribunal conceded that the dismissal had been unfair as they had since learnt that the Claimant’s visa had been temporarily renewed when she had applied independently to the Home Office for a visa which would not tie her to a particular employer, through a different route – the FLR(O) procedure.
The Tribunal rejected the Claimant’s claims of whistleblowing detriment and dismissal and limited her compensatory award for unfair dismissal to the 6 week period her visa was extended before her application was rejected with no right of appeal.
On appeal the Tribunal’s Judgments of both Liability and Remedy were largely upheld.
Although the Tribunal had not had the benefit of Kilraine v London Borough of Wandsworth [2016] IRLR in analysing whether the disclosures amounted to information, and wrongly concluded that some of the disclosures were not protected or qualifying disclosures, the Tribunal had nonetheless made findings about the reason why the alleged detriments had occurred. They found that the reasons for the treatment were not materially influenced by the matters relied on by the Claimant as disclosures and dismissed the claim. Even though it’s reasoning could have been clearer, the Tribunal was entitled to reach its conclusions on the dismissal and the detriments it considered.
The Tribunal was also entitled to conclude that the Claimant’s compensatory award should be limited to the period of her entitlement to work in the UK. Since the Claimant did not ask the Respondent to apply for an extension of her visa on her behalf, it was just and equitable to limit compensation to the date the Claimant could work legally in the UK in all the facts and circumstances of the case.
However, the Tribunal had failed to make findings on 2 of the detriments relied on and the case is remitted back on limited terms to the same Tribunal to make findings and determine those two matters.
Judges:
Stacey J
Citations:
[2018] UKEAT 0033 – 18 – 2012)
Links:
Jurisdiction:
England and Wales
Employment
Updated: 19 July 2022; Ref: scu.631857