Miss L Price v Lidl Great Britain Ltd: 1300449/2024
JUDGMENT
The respondent shall pay to the claimant, compensation in the total sum of £6,826.58 comprising as follows: Basic award: £6,430.00 Loss of earnings, including loss of statutory rights: £396.58 Signed by JUDGMENT having been sent to the parties on 17 January 2025 and written reasons having been requested in accordance with Rule 60 of the Employment Tribunals Rules of Procedure, the following reasons are provided:REASONS
[1]This is the Judgment in the hearing on remedies on 17 January 2025.[2]I was presented with a remedy bundle of 145 pages which contained a witness statement from the claimant, a separate document containing a payslip and a counter schedule of loss from the respondent.[3]The claimant gave evidence during the hearing and was cross-examined. I also heard submissions from both parties.[5]I take all the above into account when reaching my decision.[6]For the avoidance of doubt, any conclusion reached on the facts is on the balance of probabilities.The law
[7]In the Employment Rights Act 1996 there is statutory provision for how remedy is to be calculated for unfair dismissal claims: 118.— General.(1) [Where] a tribunal makes an award of compensation for unfair dismissal under section 112(4) or 117(3)(a) the award shall consist of— (a) a basic award (calculated in accordance with sections 119 to 122and 126, and (b) a compensatory award (calculated in accordance with [sections 123, 124, 124A and 126]). 119.— Basic award. (1) Subject to the provisions of this section, sections 120 to 122 and section 126, the amount of the basic award shall be calculated by— (a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed, (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and (c) allowing the appropriate amount for each of those years of employment.(2) In subsection (1)(c) “the appropriate amount” means— (a) one and a half weeks' pay for a year of employment in which the employee was not below the age of forty-one, (b) one week's pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and (c) half a week's pay for a year of employment not within paragraph (a) or (b).(3) Where twenty years of employment have been reckoned under subsection (1), no account shall be taken under that subsection of any year of employment earlier than those twenty years. 123.— Compensatory award. (1) Subject to the provisions of this section and [sections 124, 124A and 126] the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. (2) The loss referred to in subsection (1) shall be taken to include— (a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and (b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.[8]In Norton Tool Ltd v Tewson 1972 ICR 501, NIRC, it was established that the Tribunal need not adopt the approach of a ‘conscientious and skilled cost accountant or actuary’, but must exercise its discretion ‘judicially and on the basis of principle’. The case further set out the types of heads to consider:a. immediate loss of earnings — i.e. loss between the dismissal and the hearing at which the tribunal decides on compensation,b. future loss of earnings — i.e. estimated loss after the hearing,c. expenses incurred as a consequence of the dismissal,d. loss of statutory employment protection rights — this covers, for example, the fact that an unfairly dismissed employee will be unable to bring another unfair dismissal claim until he or she has had two years’ continuous employment in a new job,e. loss of pension rights.[9]It is the employee’s duty to provide evidence of his or her losses as per Adda International Ltd v Curcio 1976 ICR 407, EAT: ‘the tribunal must have something to bite on, and if an applicant produces nothing for it to bite on, he will have only himself to thank’.[10]The compensatory award is strictly limited to making good the employee’s financial loss. In no sense should the employment tribunal seek to bring into its calculations any consideration of what would be ‘just’ in order to punish the employer or reflect its disapproval of the employer’s employment practices (Lifeguard Assurance Ltd v Zadrozny and anor 1977 IRLR 56, EAT).[11]Tribunals are to use the facts that are at their disposal in order to reach an accurate assessment of compensation, but they can adopt a broad brush approach when necessary (Norton Tool Co Ltd v Tewson 1972 ICR 501, NIRC. Agreed Facts[12]The following facts were agreed between the parties.[13]The claimant was born on 16 February 1992. She was 31 at the date of termination.[14]The claimant’s dates of employment are 28 October 2012 to 10 November 2023. She therefore had 11 years of continuous service.[15]There were 62 weeks between the effective date of termination and the remedy hearing.[16]The claimant was paid £5,591.08 in lieu of notice.[17]Contained within the schedule of loss and the counter schedule of loss were the following figures:a. The claimant’s net weekly pay at the effective date of termination was £592.33.b. The gross weekly pay was £788.46.c. The parties agreed that the basic award was therefore £6430.00. Uncontested facts[18]The respondent alleged during the hearing that the claimant had earned £31,281.80 in her new role. They claimed this was taken from payslips. The claimant did not challenge this figure during the hearing. Contested facts[19]The claimant got a job in ten days. She did well to mitigate her losses.[20]However, her new job is on a lower salary and she describes it as temporary agency work.[21]The respondent argues that it is now a permanent position as she has worked there for 12 months. I do not accept this argument. It is still agency work and such work is by its nature flexible, but it has risks. There is no evidence to suggest she might not be working there in a few weeks’ time. She has no permanent contract of employment and her agency do not have a commitment to provide her with work.[22]The claimant did look for other jobs but says she was not committed to the search for two reasons. She says she was happy in her new role and earning well for the role. She also referred to the Tribunal process and her having been dismissed causing her emotional upheaval.[23]I accept those things played a role. But it didn’t prevent her from looking. This was her choice.[24]I have seen evidence in the bundle that there were other jobs in a similar role for a similar wage in December in the claimant’s area.[25]Taking all of this into account and applying a broad brush, I award losses until today only. The claimant’s failure to mitigate loss becomes greater over time and tapers out until today.[26]I award for loss of statutory rights: £500. I consider this to be the current trend and proportionate in this case.[27]The claimant seeks £45 travel costs for seeking employment. There is some evidence in her witness evidence and the bundle. I accept her evidence and award that sum.[28]There is a period claimed for loss of earnings which includes calculation of a payment during a period the claimant says she wasn’t working and not earning due to an operation. However, her payslips show otherwise. She had the opportunity to provide bank statements, and she didn’t. I find on the balance of probabilities that the claimant did receive funds during that period.[29]I apply the same principle for the claim for sickness benefit and therefore refuse that aspect of the claim.[30]In relation to the claimed uplift, I make no award. The claimant is seeking an uplift due to alleged failures that took place during negotiation between the parties as part of the ACAS Conciliation process. I have no jurisdiction to consider this. Even if I did, I do not accept it flows from dismissal. It is a part and parcel of the negotiating phase prior to the final hearing.[31]There is no evidence for the claim for pension loss. I therefore cannot and do not award anything for pension loss. The figures broken down are therefore:The law
[1]Details Date of birth of claimant 16/02/1992 Date started employment 28/10/2012 Effective Date of Termination 10/11/2023 Period of continuous service 11 (years) Age at Effective Date of 31 Termination Remedy hearing date 17/01/2025 Date by which employer should 17/01/2025 no longer be liable Statutory notice period (weeks) 11 Net weekly pay at EDT 592.33 Gross weekly pay at EDT 788.46 Gross annual pay at EDT 41,000.00[2]Basic award Basic award Number of 6,430.00 qualifying weeks (10) x Gross weekly pay (643.00) Total basic award 6,430.00[3]Compensatory award (immediate loss) Loss of net earnings Number of 36,724.46 weeks (62) x Net weekly pay (592.33) Plus loss of statutory rights 500.00 Less payment in lieu -5,591.08 Plus Travel costs 45.00 Less Earnings in new -31,281.80 employment Total compensation 396.58 (immediate loss)[4]Adjustments to total compensatory award Compensatory award before 396.58 adjustments Total adjustments to the 0.00 compensatory award Compensatory award after 396.58 adjustments[5]Summary totals Basic award 6,430.00 Compensation award including 396.58 statutory rights Total 6,826.58