The Claimant was employed by the Respondent as a cleaner. He is a national of Guinea Bissau but married to an EEA national exercising Treaty rights in the UK. That being so, the Tribunal correctly found that the Respondent was not at any risk in continuing to employ him after his residence permit expired. However, following inconclusive ECS checks it dismissed him. The Tribunal found that the dismissal was unfair because the Respondent had not shown that it had dismissed for the fair substantial reason of a genuine, though mistaken, belief that he could not lawfully remain employed. The Tribunal had not heard any evidence from the person who made the decision to dismiss and concluded that it could make no finding about their thought process.
However, the Tribunal reduced the compensatory award under Section 123(6) Employment Rights Act 1996, relying on conduct whereby it found that the Claimant was less than forthcoming with the Respondent about matters related to his application to renew his residency permit. It also further reduced or limited that award on the basis that the Claimant had failed to mitigate his loss by not applying for night work vacancies with the Respondent. Five live grounds of appeal and one ground of cross-appeal all related to those two decisions.
Held:
(1) In relation to the Section 123(6) reduction, the Respondent conceded, rightly, that the Tribunal had erred because it wrongly assumed that there was no requirement for the conduct relied upon to be blameworthy. It is a prerequisite of a reduction of either a basic award under Section 122(2) or a compensatory award under Section 123(6), that the Tribunal find the conduct in question to have been blameworthy. Nelson v BBC (No2) [1979] IRLR 346 and Steen v ASP Packaging Limited [2014] ICR 56 considered.
(2) In view of this conceded, and found, error of law, in relation to the Section 123(6) decision, an alternative ground of perversity fell away.
(3) A cross-appeal to the effect that the Tribunal should have drawn a distinction between deliberate and inadvertent conduct was also dismissed. Blameworthy conduct can be of a variety of kinds, and its nature, and extent in the given case, will be relevant to the Tribunal’s decision as to the degree of reduction that is just and equitable. But a Tribunal is not obliged to make that particular distinction, and the suggested opposition of inadvertent and deliberate conduct is unhelpful.
(4) The Tribunal’s conclusion that the conduct relied upon was not blameworthy could not stand. It was not supported by any consideration of the law relating to this concept, or any factual reasoning, and fell within the context of a part of the decision which was in error of law. It was not safe.
(5) It would have been open to the Tribunal to find that the conduct in question was, in some sense, blameworthy. But it would not be open to it to find that it caused or contributed to the decision to dismiss, to any extent. This was having regard, in particular, to the fact that the Tribunal was unable to make findings about the thought process of the person who took the decision to dismiss. A decision that there be no reduction under Section 123(6) was the only legally correct decision, and would be substituted.
(6) In relation to mitigation, the Tribunal had failed to take account of the fact that the burden was on the Respondent, and that the question was not answered merely by considering whether it would have been reasonable to apply for night work. The Tribunal had to consider whether the decision not to do so was unreasonable. Wilding v British Telecommunications plc [2002] ICR 179 and Cooper Contracting v Lindsey 2015 UKEAT/0184/15 followed. The evidence provided by the Respondent was so scant that it would not even properly support a finding that it would have been reasonable to apply; and the Tribunal failed to consider whether it was in all the circumstances unreasonable not to apply. The reduction was also unfair because the Claimant was not cross-examined about his decision not to apply for night work, and the matter was not raised in submissions. There was no sufficient evidence from which the Tribunal could properly have found that the Claimant unreasonably failed to mitigate his losses by not applying for night work. This issue would, therefore, also not be remitted, as the only possible correct decision was that there should be no reduction on that account.
(7) The matter was remitted to the same Tribunal to decide the final amount of the compensatory award, without any reduction under Section 123(6) or for failure to mitigate.
Citations:
[2020] UKEAT 0250 – 18 – 2502
Links:
Jurisdiction:
England and Wales
Employment
Updated: 27 November 2022; Ref: scu.650918
