Mr T Mitchell v Jaguar Land Rover Ltd: 1305978/2024
EMPLOYMENT TRIBUNALS
Case No 1305978/2024
Between
Mr T MitchellClaimantJaguar Land Rover LtdRespondent
Before
Employment Judge WoffendenIn person for claimantMs A Rumble (instructed by Counsel) for respondentDate 30 May 2025
JUDGMENT
[1]The claim of unfair dismissal succeeds.[2]The parties will be notified of a date for a remedy hearing in due course and sent a separate case management order setting out required steps to prepare for it.
REASONS
[1]The claimant’s claim for unfair dismissal having succeeded at a liability hearing on 30 and 31 October 2024, a remedy hearing was listed for 9 January 2025, and directions were given to enable the parties to prepare for that hearing.
Evidence
[2]The parties had agreed a bundle of documents for use at the remedy hearing (121 pages).[3]I heard evidence from the claimant and on behalf of the respondent I heard from Mr M Morgan (dismissing officer and Production Area Manager) and Ms G Bravington (Senior Case Management Adviser). I had regard to those documents in the agreed bundle of remedy documents and the agreed bundle of documents for the liability hearing to which the parties referred in witness statements under cross examination or in submissions. The claimant confirmed under crossexamination that he still wished the tribunal to make an order for reinstatement or re-engagement.
Issues
[4]The issues to be determined at the remedy hearing were as follows:4.1 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.4.2 If the tribunal does not order re-instatement , does the claimant wish to be reengaged to comparable employment or other suitable employment?4.3 Should the Tribunal order re-engagement? The Tribunal will consider whether re-engagement is practicable and, if the claimant caused or contributed to dismissal, whether it would be just.4.4 What should the terms of the re-engagement order be?4.5 If the tribunal does not order re-instalment or re-engagement the tribunal shall make an award of compensation for unfair dismissal.4.6 If the dismissal was procedurally unfair, would the Claimant have been dismissed in any event and should compensation be reduced accordingly? (Polkey)4.7 Should any basic award be reduced because the tribunal considers the conduct of the claimant before the dismissal was such that it would be just and equitable to do so. If so by what percentage?4.8 Should any compensation award be reduced to reflect the fact that the Claimant’s conduct caused or contributed to his dismissal? If so by what percentage?4.9 Has the Claimant taken reasonable steps to replace lost earnings?4.10 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?4.11 Did the respondent or the claimant unreasonably fail to comply with it?4.12 If so, is it just and equitable to increase or decrease any award payable to the claimant?4.13 By what proportion, up to 25%? Fact Finding[5]The claimant was employed by the respondent as a production operative from 12 April 2014. His date of birth is 4 June 1989. Mr Morgan sent the letter dated 11 April 2024(in which he confirmed his decision to dismiss the claimant summarily which he had taken at the disciplinary hearing in the claimant’s absence) to the claimant by email on 10 April 2024.The claimant accepted under cross-examination that he had read that letter on 11 April 2024.[6]The claimant says in his schedule of loss that his gross weekly pay was £1012 but the respondent says in its counter schedule that the correct figure is £937.23. I find having regard to the wage slips of the claimant that the correct figure is that given by the respondent.[7]As I found in the written reasons for the liability judgment (the Reasons’) the respondent’s company handbook (the ‘Handbook’) includes its Code of Conduct and sets out its values which include integrity stating, ‘We will be fair honest and transparent in our conduct; everything we do must stand the test of public scrutiny.’ The respondent says ‘Our reputation is one of our most valuable assets. A good reputation takes a long time to build, but can be damaged by a single dishonest, illegal or unethical act’ and ‘If we do not act with integrity we will jeopardise the trust of our customers and other stakeholders.’ The Handbook also includes the respondent’s disciplinary appeals procedure which states that ‘Where the outcome of an appeal is unacceptable to an employee, the disciplinary action will be implemented but the matter may be referred to the Procedure for the Avoidance of Disputes’.[8]It was the claimant’s evidence in his witness statement and under crossexamination that having been dismissed he did not start looking for work until June 2024 spurred on by his partner having gone back to work two weeks after their youngest child was born that month. It was put to him that the evidence in the remedy bundle of documents suggested he did not start doing so until early October 2024 shortly before the liability hearing. He said he had ‘messed up’ on that and had included the evidence about this which he had had to hand. Ms Rumble drew my attention in submissions to the claimant’s inconsistent evidence about when he began to apply for work and the lack of corroborating documentary evidence. In his oral submission the claimant drew my attention to the contents of the bundle of documents for the liability hearing which he said contained a copy of an application for work on 3 June 2024. In fact, there are applications for work in that bundle dating from 18 May to 6 June 2024 and then from 11 September to 2 October 2024 and in the remedy bundle of documents from 2 October to 13 November 2024.I draw no adverse inference from the claimant’s inconsistency in this regard; I find the claimant made a genuine mistake in recalling the documentary evidence about mitigation he had previously provided.[9]The claimant had told me on 31 October 2024 at the liability hearing after evidence had concluded that he had got another job the previous week picking in a warehouse. His original schedule of loss stated that as at 22 July 2024 he had been self-employed for Evri for a period of 2 weeks and received £ 200 but this had not paid enough. It was in the light of the information about his new job that I ordered the preparation of an up-to-date schedule of loss. He currently works as a production operative on a temporary full time (40 hours) contract (3 months) earning £21. 90 an hour, receiving his first wage on 5 December 2024, having started the previous week. Prior to this he had undertaken picking work in the warehouse but also for Royal Mail although he did not work every day. He told me that £2500 was ‘more or less’ what he earned while working as a picker but he could not really remember. His updated schedule of loss did not explain how that sum had been calculated. His evidence was that wages from jobs which were not ‘regular’ were paid into his bank account but although he had disclosed that bank’s bank statements from May to 24 November 2024 he could not identify in them any wages he had received and accepted he had another bank account which he described as his ‘proper’ account which he had had for ‘years’ and about which he had not disclosed any documentary evidence. He has claimed Job Seekers Allowance since the liability hearing. He understood that the tribunal had found that he had attempted to remove from the respondent’s Solihull site 8 AMP modules without the respondent’s permission and had set out the standards of conduct and the obligations to which he was subject ( paragraph 8 of the Reasons).However he was clear that he did not accept the tribunal’s findings about his conduct because he had not been caught with the parts in his possession.[10]As there was ‘no proof to the accusation ,just assumption’, the claimant did not consider that his relationship with the respondent had been adversely affected ‘but Mr Morgan’s evidence (which was not challenged by the claimant) was that the claimant’s conduct was so serious that trust and confidence between the respondent and the claimant had irretrievably broken down and that if an order for reinstatement or re-engagement were made it would have serious adverse consequences for the respondent, fundamentally undermining its core value of integrity. It would send a message that the claimant’s conduct was acceptable or tolerated which would jeopardise the trust of staff customers and stakeholders. The claimant had requested written reasons in relation to liability and if an order for reinstatement or re-engagement were made it had the potential to damage the respondent’s reputation with the public. The respondent prided itself on having zero tolerance for dishonesty and such an order concerning someone who on the balance of probabilities had attempted to steal from the respondent would conflict with those values. He expressed the opinion that there was the risk of a repetition of the offence by the claimant who had shown no remorse or contrition but rather sought to embellish his account and gave to the tribunal a wholly incredible explanation for his conduct on the day in question. When I asked him whether the stated position of the respondent was in relation to the production side of the business he said that the respondent would not be prepared to have him back to work anywhere in its entire enterprise.[11]As far as the outcome of an appeal was concerned it was Mr Morgan’s evidence (again not challenged by the claimant) that had a fair procedure been followed there would have been no outcome other than the dismissal of the claimant given the seriousness of the claimant’s conduct and the respondent’s values. If he had been able to make representations either at a disciplinary hearing (had he been well enough to attend) or at an appeal hearing, given the explanation he had given to the tribunal some six months later for his conduct on the day in question which had been found to be wholly lacking in credibility and the failure to put forward any mitigating circumstances it was exceptionally unlikely that he would have done so at any disciplinary or appeal hearing.[12]Ms Bravington has been employed by the respondent in its HR function at Solihull since September 2021 (case management adviser). She has been a senior case management adviser since May 2023. It was Ms Bravington’s evidence (none of which was challenged by the claimant) that in relation to how long it would have taken to conclude a fair procedure , a second session with Occupational Health (which would have preceded the disciplinary hearing) would not have taken place until on or around 17 April 2024 and ,following receipt of an Occupational Health report ,that hearing would have been scheduled shortly thereafter with any recommended adjustments ( the week of 22 April 2024).Employees have 5 working days to present an appeal and it then takes between 2 and 6 weeks to arrange an appeal hearing, depending on the volume of documentation and availability of the requisite attendees. Given the limited complexity of the claimant’s case, she thought it would be arranged in about 4 weeks. An appeal officer would consider the grounds of appeal and any new evidence and having weighed the evidence and considered any representations would reconvene after a short adjournment and give the decision unless further consideration or investigation was required. She did not consider in the case of the claimant in the light of the strength of the evidence that the claimant had been trying to take the 8 AMP modules without permission it was unlikely a lengthy adjournment would have been needed and in the absence of adequate explanation given by the claimant to the tribunal it was very likely that the appeal officer would have upheld the dismissal.[13]Ms Bravington’s evidence in relation to a second potential appeal stage under the Handbook was that it was her firm belief that the trade union would not have supported this as was required because of the claimant’s lack of prior engagement in the disciplinary process and the trade union’s lack of involvement. Had there been such an appeal it would take 6 weeks to arrange. When I asked her about this, she maintained this would be the stance of the trade union even if the employee in question had been deprived of a first stage appeal due to its lack of involvement at any previous stage. I accept the evidence of both Ms Bravington and Mr Morgan.
The Law
[14]Under section 112(2) ERA when a tribunal finds a complaint of unfair dismissal well-founded, ‘The tribunal shall— (a)explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and (b)ask him whether he wishes the tribunal to make such an order. (3)If the complainant expresses such a wish, the tribunal may make an order under section 113. (4)If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126) to be paid by the employer to the employee.’[15]The orders which may be made under section 113 ERA may be an order for reinstatement or an order for re-engagement.[16]When considering whether to make either order a tribunal must take into account whether it is practicable for the employer to comply with such an order( section 116 (1) (b) and (3) (b) ERA) and ,where the complainant caused or contributed to some extent to the dismissal, whether it would be just to do so and ,if so, in the case of reengagement on what terms ( section 116 (1) ( c ) and (3) (c ) ERA). 17 ‘Practicable ‘means more than merely possible, but rather’ capable of being carried into effect with success’ (Coleman & Anor v Magnet Joinery Ltd 1975 ICR 46, CA). The tribunal is making a prospective judgment on a neutral burden of proof as to the practicability of compliance. It is a question of fact for the tribunal.[18]The relevant test when considering whether re-employment is practicable following dismissal for misconduct is whether the particular employer genuinely and rationally believed that the claimant was guilty of the misconduct alleged.[19]When making an award of compensation for unfair dismissal the award of compensation consists of a basic award (calculated in accordance with sections 119 to 122 and 126 ERA) and a compensatory award (calculated in accordance with sections 123, 124 ERA).[20]Under section 119 Employment Rights Act 1996 (‘ERA’): ‘(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).’[21]Under section 122 (2 ERA) Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly. Although any percentage reduction does not have to be the same for the basic award and compensatory award, there needs to be good reason to apply different reductions and doing so may be regarded as exceptional (Renewi UK Services Ltd v Pamment EA-2021-000584 (26 October 2021, unreported).[22]Under section 123 (1) ERA: ‘(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.’[23]Under section 123 (6) ERA: ‘(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.’[24]For the purposes of section 123 (6) ERA the following factors need to be established a) the conduct must be culpable or blameworthy; b) the conduct must have actually caused or contributed to the dismissal ;and c) it must be just and equitable to reduce the award by the proportion specified ( Nelson v BBC ( N0 2 ) 1980 ICR 110 CA[25]Under section 123 (4) ERA: ‘(4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.’[26]The tribunal may reduce the compensatory award to reflect the chance that the employee may have been dismissed in any case at some point Polkey v AE Dayton Services Ltd 1988 ICR 142, HL. The relevant principles to be applied were set out as follows by Elias P in Software Ltd v Andrews [2007] UKEAT 0533_06_2601: ‘(1) In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal. (2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future). (3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made. (4) Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence. (5) An appellate court must be wary about interfering with the Tribunal's assessment that the exercise is too speculative. However, it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role. (6) The s.98A(2) and Polkey exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a Tribunal considers that some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely. (7) Having considered the evidence, the Tribunal may determine(a) That if fair procedures had been complied with, the employer has satisfied it - the onus being firmly on the employer - that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2).(b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly.(c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O'Donoghue case.(d) Employment would have continued indefinitely. However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored.’[27]Tribunals must therefore assess a Polkey deduction in two respects: If a fair process had occurred, would it have affected when the claimant was dismissed; and What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal.[28]Where there is a significant overlap between the factors taken into account in making a Polkey deduction and when making a deduction for contributory conduct, the tribunal should consider expressly whether in the light of that overlap, it is just and equitable to make a finding of contributory fault, and ,if so what its amount should be. This is to avoid penalising the claimant twice for the same conduct (Lenlyn UK Ltd v Kular UKEAT/0108/DM) .[29]A tribunal can increase an award by up to 25% if an ACAS Code applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2. and there has been an unreasonable failure by a party to comply with it (section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR (C) A”)). Schedule A2 includes section 111 (unfair dismissal). The ACAS Code of Practice: Disciplinary and Grievance Procedures (2015) (which tribunals are required to take into account when considering relevant cases) sets out a number of elements in dealing with issues fairly when a disciplinary and grievance procedure is being followed which includes allowing an employee to appeal against any formal decision made. Paragraph 26 of the ACAS Code states: 26. Where an employee feels that disciplinary action taken against them is wrong or unjust they should appeal against the decision. Appeals should be heard without unreasonable delay and ideally at an agreed time and place. Employees should let employers know the grounds for their appeal in writing.’[30]The effective date of termination is when an employee has received and read the dismissal letter (CYF v Barratt 2010 IRLR 1073). Submissions[31]I thank Ms Rumble for her oral submissions and skeleton argument and the claimant for his oral submissions .
Conclusions
[32]I start by concluding that the effective date of the termination of the claimant’s employment was 11 April 2024. The claimant had therefore completed 9 years of continuous employment with the respondent. Where the effective date of termination is on or after 6 April 2024 the statutory limit on a week's pay is £700.[33]Turning now to Issue 4.1, the respondent genuinely believed at the time of the decision to dismiss the claimant that the claimant had attempted to leave the Respondent’s site on 8 January 2024 with eight AMP modules without its consent, but it formed that belief on the basis of the evidence before Mr Morgan without hearing from the claimant. It had lost trust and confidence in the claimant. Now of course the claimant has explained his conduct on 8 January 2024. He did so at the liability hearing, embellishing and changing the account he gave in his witness statement, and giving an account wholly lacking in credibility. I found at the liability hearing that he had on the balance of probabilities attempted to remove from the respondent’s Solihull site 8 AMP modules without the respondent’s permission. These matters have done nothing to restore the respondent’s trust and confidence in the claimant. Given the store by which the respondent sets integrity it fears that reemployment of the claimant will be injurious of the respondent’s reputation both within and without the business. The claimant’s embellishment and explanation which lacked credibility in the absence or remorse or contrition on his part has resulted in a concern on the respondent’s part that the conduct would be repeated. For his part the claimant does not accept that his relationship with the respondent has been damaged; he lacks any insight into how he might now be regarded by the respondent and, despite my findings, does not consider that it has been proven that he committed the misconduct alleged. I conclude that those matters mean it is not practicable for the respondent to comply with an order for reinstatement as a production operative.[34]Further or in the alternative it would not be just to make such an order because the claimant caused his dismissal. The sole reason the respondent dismissed the claimant was because of his unauthorised attempt to leave the respondent’s site on 8 January 2024 with 8 AMP modules.[35]For the same reasons I decline to make an order for reengagement.[36]I must now therefore consider the award of compensation for unfair dismissal. The claimant’s updated schedule of loss sets out his losses up to the date of the remedy hearing but also states that his losses will continue for a further period of 12 weeks for him to complete a course and become skilled. Ms Rumble submitted that had a fair procedure been followed the claimant would have continued in employment for an additional 11 weeks. The claimant said he was content to leave this issue (and the issue of contributory conduct) to the tribunal’s discretion. In this case I conclude that if a fair process had been followed this would have affected when the claimant was dismissed. A second session with OH would not have taken place until 17 April 2024 and an OH report would have been prepared and sent to the respondent on that date. It took Mr Morgan about 3 weeks from the time he received the OH report to arrange and invite the claimant to a disciplinary hearing of which the claimant was give 6 days’ notice and it is reasonable to conclude that the same timescale would have prevailed if a fair process had been carried out. If the disciplinary hearing had taken place in accordance with that timescale a decision would have been taken that day and announced to the claimant, and this would have been confirmed in writing to him the day afterwards. The claimant has not submitted that any additional investigation into his explanation or any mitigating circumstances would be needed. He would then have 5 working days for the appeal to be made in writing from the date the decision was communicated to him and the appeal would then have been arranged to take place in about another 4 weeks. I conclude no second appeal would be made in the absence of support from the trade union. I therefore accept Ms Rumble’s submission.[37]Had a fair process been followed I conclude that it would have resulted in the claimant’s dismissal. This respondent’s decision makers would have had before them the same evidence that Mr Morgan had before him when he took the decision to dismiss the claimant as well as the explanation for his conduct on 8 January 2024 which he gave to this tribunal wholly lacked credibility. They would have had reasonable grounds for believing that the claimant had attempted to leave the respondent’s site with 8 AMP modules without permission. There would have been no mitigating circumstances put forward by the claimant for this conduct. They would have regarded this conduct as an act of gross misconduct, having regard to the non-exhaustive list of conduct which amounts to gross misconduct and entitles the respondent to dismiss without notice and the importance it attributes to integrity as one of its core values (see paragraph 7 above). The decision makers would have had regard to the claimant’s length of service and previous disciplinary record but even having regard to these factors the weight accorded to them would not be such that the decision to dismiss would be outside the range of reasonable responses. There would have been no grounds on which an appeals officer would overturn the decision to dismiss.[38]Turning now to the issue at 4.9, Ms Rumble submitted that the claimant should have found commensurate employment within 12 weeks of the effective date of termination. I have found above that the claimant’s employment would hve continued only for a period of 11 weeks. Having started looking for work midMay 2024, by 22 July 2024 the claimant had earned £200 for two weeks work but he did not carry on with that work because, in his opinion, it had not well paid enough. The burden of proof is on the claimant to prove his losses. He has not provided any evidence about when he worked or received £200. I consider it just and equitable in those circumstances for him to give credit for that sum within the 11-week post dismissal period.[39]Turning now to issues 4.7 and 4.8. I have already concluded in paragraph 28 of the Reasons that on 8 January 2024 the claimant attempted to remove from the respondent’s Solihull site 8 AMP modules without the respondent’s permission. I conclude that this conduct was such that it would be just and equitable to reduce the basic award. That conduct was culpable and blameworthy and was the cause of the claimant’s dismissal. I have considered whether I should apply different reductions to the basic award and the compensatory award in this case but find no good reason to do so. However, I remind myself of the need to avoid penalising the claimant twice for the same conduct in the light of the very significant overlap between what I took into account in the approach I have taken to the Polkey issue at paragraphs 36 and 37 above and the issue of contributory conduct, namely the claimant’s attempt to remove the 8 AMP modules without the respondent’s permission. The approach to the Polkey issue means that the claimant’s losses are reduced to assessment over a matter of weeks only. In that circumstance although I consider it just and equitable to make a reduction for contributory fault, I conclude that the percentage reduction to both the basic award and the compensatory award should be a relatively modest one of 10%, and not 100% in respect of both awards as was submitted by Ms Rumble. 39 I now turn to the issues at 4.10 to 4.13. Ms Rumble accepted that the ACAS Code applied but submitted that a percentage uplift of 10% should be made, the identified breach of the ACAS Code being limited to the appeal process. The claimant sought an increase of 25%. As I said in paragraph 41 of the Reasons the ACAS Code makes clear the importance of allowing an employee to appeal in dealing with matters fairly. Although the ACAS Code was not ignored altogether, the respondent (a large employer with a human resource department) deprived the claimant of an essential procedural safeguard. Although there was no evidence before me that the non-compliance was deliberate, members of the respondent’s human resource department ought reasonably to have known that the ACAS Code should be complied with in its entirety, rather than in a piecemeal fashion. This was an unreasonable failure to comply with the ACAS Code. I consider it just and equitable that a percentage increase of 15% should be made in this case.[40]The Recoupment Regulations do not apply because the claimant did not claim Job Seekers Allowance until after the period of assessment of loss.