EAT Unfair Dismissal : Compensation – Claimant’s appeal
The question of grossing up was a live issue before the Tribunal and the Respondent accepted that, in order to achieve an award that was just and equitable, grossing was required to the extent the award exceeded andpound;30,000. The Employment Tribunal accepted this point in its Review Judgment but failed to then make the necessary correction. Having accepted an error in this regard, it was simply inconsistent for the Tribunal to then confirm its original Judgment.
Further, it was agreed that there were errors of calculation in the original Judgment; again, apparently accepted by the Tribunal’s Review Judgment but there was then an error in the failure to make the necessary corrections.
On the Claimant’s next ground of appeal, the question arose as to the basis upon which the Tribunal had limited her claim. Neither side had approached this as being a case where there had been a break in the chain of causation. Both saw it as about adequacy of mitigation. There was a real difficulty in understanding the Tribunal’s decision as being one of a break in causation. This term was used for the first time in the Review Judgment. This was not a case where the Claimant had taken up an entirely new career path and the facts found by the Tribunal did not obviously speak of a break in the causative chain. There was no explanation for the Tribunal’s finding that this is what had occurred and the language used seemed only to address the question of reasonableness of mitigation. If this was a finding of a break in the chain of causation then it was inadequately reasoned.
Further, on the question of mitigation, the Tribunal had failed to ask the correct question. It needed to identify: what step should have been taken; the date on which that step would have produced an alternative income; and then to reduce the compensation by the amount of the alternative income (Gardiner-Hill v Raymond Berger Technics Ltd [1982] IRLR 498). The Tribunal’s Reasons – whether for the original Judgment or on Review – failed to demonstrate that this exercise was undertaken.
The Claimant’s appeal was allowed on the above grounds.
Although the Claimant’s third ground of appeal (relating to the 60% withdrawal factor on the pension award) did not succeed, given the view formed on the other grounds of appeal (both the Claimant’s and the Respondent’s), this point would go in any event.
The Respondent’s appeal
Accepting that the Tribunal was not obliged to adopt the guidelines or any particular approach and that it would not be an error of law to find pension loss continuing for longer than the loss of earnings in terms of basic pay, it remained the case that the Tribunal’s reasoning for its conclusion on pension loss was simply opaque. The Respondent could not understand why finding that the Claimant’s taking up the new position with Artslink broke the chain of causation in terms of its liability for basic pay but had no impact on pension loss (and see per Elias LJ in Aegon UK Corp Services Ltd v Roberts[2009] IRLR 1042, CA).
If the Tribunal was really holding that there was no break in the chain of causation but this was all about mitigation, the reasoning would still be inadequate. This is because the Tribunal did not adopt the approach laid down in Gardiner-Hill (see above).
Similar points arise in respect of the Respondent’s second ground of challenge to the Tribunal’s finding, in respect of the Claimant’s mitigation for the first year of unemployment. The Tribunal’s reasons were simply inadequate in this respect.
Respondent’s appeal also allowed.
Case remitted to a new Tribunal for fresh consideration of all points on remedy.
Eady QC J
[2014] UKEAT 0063 – 14 – 2306
Bailii
England and Wales
Citing:
See Also – Chaloner v Somerset County Council EAT 23-Jun-2014
EAT Unfair Dismissal : Compensation – Claimant’s appeal
The question of grossing up was a live issue before the Tribunal and the Respondent accepted that, in order to achieve an award that was just and . .
Lists of cited by and citing cases may be incomplete.
Employment, Damages
Updated: 20 December 2021; Ref: scu.536435