Mr I Chedburn v Emily Estate (UK) Ltd T/a The Newt in Somerset: 1404378/2023
JUDGMENT
At all times material to this claim, the Claimant was disabled by reason of a physical impairment, namely recurrent corneal epithelial erosion syndrome.REASONS
[1]There is no reasonable prospect of the original decision being varied or revoked.[2]The decisions the Claimant takes issue with were case management decisions to determine the scope of the remedy hearing. The Tribunal decided that both the ACAS uplift issue and the Polkey issue would require further evidence, and it was not proportionate or fair to delay determination of remedy by adjourning the hearing. The Claimant’s application is to the effect that his case on the ACAS uplift was so strong, and the Respondent’s potential case on Polkey was so weak, that there would have been no need for any further evidence and those issues could (and should) have been determined in his favour at the remedyhearing.
[3]On the ACAS uplift issue, the Claimant now alleges that his dismissal was “in effect, a disciplinary decision” and therefore the ACAS Code applied as regards disciplinary procedures. This is a new argument not pursued at the remedy hearing. As noted in the written reasons sent to the parties on 12 November 2024, the Claimant had not identified any specific provisions of the Code which he alleged the Respondent failed to comply with. During the remedy hearing he alleged the Respondent’s approach to his grievance was not reasonable. It was on that issue that the Tribunal determined the alleged breach(es) of the Code would need be clarified, and the Respondent would need an opportunity to give evidence as to the reasons for responding to the grievance as it did.[4]The Claimant’s argument that this was a “disciplinary situation” such that the disciplinary provisions of the Code applied may have merit, but the Employment Appeal Tribunal has confirmed there is no obligation on an employment tribunal to consider whether an uplift should be made for non-compliance with the Code where the issue has not been put before it (Pipecoil Technology Ltd v Heathcote EAT 0432/11). The claim for an uplift was not made on this basis at any stage before the application for reconsideration.[5]As for the limitation of the claim to the six-month period in the Claimant’s original schedule of loss, the Claimant’s application fails to acknowledge that the Respondent’s decision not to pursue a Polkey argument was taken in the context of him claiming losses only for six months post dismissal. It would obviously not be fair to hold the Respondent to that decision if the Claimant was allowed to claim financial loss over a much longer period including future loss.[6]The Tribunal did not make any determination of the Polkey issue and it would not have been fair to do so without giving the Respondent the opportunity to call evidence and cross-examine the Claimant on the issue. The Claimant argues that the Respondent had ample time to prepare because his updated schedule of loss was served on them two weeks before the remedy hearing. The Respondent was, however, entitled to prepare for the remedy hearing on the basis that the issues would be those agreed at the conclusion of the liability hearing. This is particularly so given that the Tribunal wrote to the parties in advance of the remedy hearing saying that the Tribunal may need to consider as a preliminary matter whether the Claimant should be allowed to claim the sums set out in the updated schedule.[7]As already noted, the Claimant effectively contends that the Respondent’s Polkey argument was so weak it would have been open to the Tribunal (and fair) to simply reject it at the remedy hearing, without giving the Respondent the opportunity to call further evidence. That cannot be right. Although the Tribunal found in its liability judgment that “None of the claimed performance issues have been substantiated”, that was in the context of determining whether the Claimant’s absences from work were a reason for his dismissal. The Tribunal did not make a finding as to the reason for the error in the nutrient formulation. It also left open the possibility that Mr Rowley genuinely believed the problems with the formulation were the result of failings by the Claimant, and that it was a factor in the decision to dismiss. If Polkey had been a live issue at the liability hearing, further factual findings are likely to have been needed, including whether there was in fact any fault on the Claimant’s part in the nutrient formulation. That may have been relevant to the likelihood of the Claimant failing his probation on nondiscriminatory grounds.[8]The matters relied upon by the Claimant as to the Respondent’s conduct of the proceedings are not relevant to either of the decisions the Claimant seeks to challenge. Approved by: