The claimant had been found to have been unlawfully dismissed and to have suffered nationality discrimination. Each party appealed against aspects of the compensatory award including the application of the statutory uplift, and the calculation of future losses. The claimant had found alternative lucrative employment which was found to be likely to improve his career prospects further.
Held: The general size of the award, where substantial could in itself amount to an exceptional circumstance allowing the court to reduce the size of the uplift: ‘it would be wrong to see the uplift purely in penal terms. The breach does have adverse consequences for the other party. In the case of a dismissal, the employee is deprived of the opportunity to persuade the employer, before the axe falls, that the dismissal would be inappropriate or unfair. Instead he is compelled to go to law to vindicate his position.’ and ‘an increase to the maximum of 50% should be very rare indeed. It should be given only in the most egregious of cases.’ In this case the ET’s original figure of 10% was not outside the range of proper awards and should be restored. However the Tribunal had erred in applying the uplift to elements, including the award for injury to feelings which could not apply.
As to the asessment of future losses: ‘In this case the Tribunal has in effect approached the case on the assumption that it must award damages until the point when it can be sure that the claimant would find an equivalent job.
In my judgment, that is the wrong approach. In the normal case if a tribunal assesses that the employee is likely to get an equivalent job by a specific date, that will encompass the possibility that he might be lucky and secure the job earlier, in which case he will receive more in compensation than his actual loss, or he might be unlucky and find the job later than predicted, in which case he will receive less than his actual loss. The Tribunal’s best estimate ought in principle to provide the appropriate compensation. The various outcomes are factored into the conclusion. In practice the speculative nature of the exercise means that the Tribunal’s prediction will rarely be accurate. But it is the best solution which the law, seeking finality at the point where the court awards compensation, can provide.’
Lord Neuberger MR, Smith LJ, Elias LJ
[2011] EWCA Civ 545
Bailii
Employment Act 2002 31(3)
England and Wales
Citing:
Appeal from – Wardle v Credit Agricole Corporate and Investment Bank (Known As Calyon UK) EAT 14-Jul-2010
EAT RACE DISCRIMINATION
Other losses
STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES
Impact on compensation
The Employment Tribunal decided that the employee had been unfairly dismissed because . .
Cited – Johnson v HM Prison Service and Others EAT 31-Dec-1996
Awards of damages for race discrimination were proper against both the employer, and an individual racist employee. 28k was not too much. Aggravated damages might be appropriate for direct discrimination where a complainant relied upon malice of . .
Cited – Lawless v Print Plus (Debarred) EAT 27-Apr-2010
EAT STATUTORY DISCIPLINE AND GRIEVANCE PROCEDURES: Impact on compensation
UNFAIR DISMISSAL: Polkey deduction
Tribunal wrong to impose no more than a 10% uplift in a case of wholesale non-compliance . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Cited – Chagger v Abbey National Plc and Another CA 13-Nov-2009
The claimant appealed against the limitation of 2% placed on the uplift of his award of damages for having failed to comply with relevant dispute procedures. The tribunal had found exceptional reasons for reducing the uplift given the size of the . .
Cited – McKindless Group v McLaughlin EAT 2-Apr-2008
EAT Unfair Dismissal: Automatically unfair reasons / Compensation
Automatically unfair dismissal. Uplift under section 31 of the Employment Act 2002. Whether or not reference/remit appropriate. . .
Cited – Da’Bell v National Society for Prevention of Cruelty To Children EAT 28-Sep-2009
EAT UNFAIR DISMISSAL
Constructive dismissal
DISABILITY DISCRIMINATION
Compensation
In a claim for constructive unfair dismissal where the last straw doctrine was not relied on, the Employment . .
Cited – Virgin Media Ltd v Seddington and Another EAT 31-Mar-2009
EAT UNFAIR DISMISSAL: Polkey deduction
JURISDICTIONAL POINTS: 2002 Act and pre-action Requirements,
‘Automatic’ unfair dismissal for redundancy by reason of non-compliance with statutory procedure – . .
Lists of cited by and citing cases may be incomplete.
Employment, Damages
Updated: 01 November 2021; Ref: scu.439654