EAT Unfair Dismissal : Compensation
Polkey deduction
Having found that the Claimant had been unfairly dismissed and suffered discrimination arising in consequence of his disability, indirect disability discrimination, and discrimination by reason of a failure to make reasonable adjustments, the ET considered what compensation would be awarded to the Claimant for his pecuniary losses.
Finding that it was ‘. . more likely than not that the Claimant would have continued to work more than 70% of his contractual hours because of his admitted medical condition’, the ET utilised the figure of 70% of net pay as the multiplicand. Taking that sum, it made an award of loss from effective date of termination to the date of hearing and ‘accepted as just and equitable the claimant’s calculation of 39 weeks for the period of future loss.’ From the total compensatory award, the ET then found that there was a possibility of the Claimant being fairly dismissed in the foreseeable future and considered it just and equitable to reduce the award by 20% on a Polkey basis.
The Respondent appealed the compensatory award, contending that the ET had erred in its approach; reached perverse conclusions and/or failed to address the evidence; and failed to give adequate reasons for its conclusions.
Held:
The assessment of loss is a matter for the ET, using its common sense, experience and sense of justice. It may involve element of speculation, and will depend on the impression the ET forms. That said, the judgment it reaches must have regard to the material before it and the findings of fact it makes upon that material. Where the ET considers that the employment would have continued, it must provide a sufficient statement of its conclusions on the evidence to enable the parties to understand the reasons for its assessment of the loss. It will be rare for the EAT to interfere with an ET’s assessment of loss but it will be bound to do so if the ET has erred in its approach or has failed provide adequate – Meek-compliant – reasons for its conclusions.
The ET here had to make an assessment of what was likely to have happened had the Respondent acted fairly and in compliance with its obligations to the Claimant as a disabled person. Having found that the Claimant would not return to full-time, shift working, it needed to form an assessment of what hours he would have been able to work, when, and on what basis. If the ET rejected the Respondent’s evidence (that the Claimant was only working productively for 20% of his time; was engaged on a ‘non-job’ and that the Respondent had to pay an agency worker to cover his other duties) it needed to clearly state that it had done so, otherwise this was part of the material before the ET and needed to be taken into account; something that was not apparent from the reasons given.
Further, the ET’s finding that the Claimant would only be able to return to a 70% level of working fed into the Polkey finding and the question of future loss. If the Claimant could not return to full-time, shift working (as the ET found), what was the assessment of how that might impact upon the Claimant’s future employment prospects with the Respondent? In carrying out this assessment, the ET would need to take into account the Respondent’s obligations to the Claimant under the Equality Act 2010. The reasons provided did not, however, demonstrate that the ET had done this.
On the basis of the ET’s reasoning, the conclusions reached as to loss from the effective date of termination to the date of hearing and thereafter for 39 weeks, and as to a 20% Polkey reduction were absent any evidential foundation. This was not to say that such conclusions were necessarily perverse but the EAT could not be satisfied that the ET had adopted the correct structured approach. It had certainly not given adequate reasons for the conclusions reached.
In the circumstances, the appeal would be allowed and the matter remitted to the same ET to consider afresh the question of compensation for pecuniary losses.
Eady QC HHJ
[2015] UKEAT 0356 – 13 – 1602
Bailii
England and Wales
Employment, Damages
Updated: 28 December 2021; Ref: scu.543900
