Mr G Cowie v Vesuvius plc and Others: 2202735/2020
EMPLOYMENT TRIBUNALS
Case No 2202735/2020
Between
Mr G CowieClaimantVesuvius plc and OthersRespondent
Before
Employment Judge AdkinMr J Susskin (instructed by Counsel) for claimantMs S Belgrove (instructed by Counsel) for respondentDate 19 June 2024
JUDGMENT
(1) The Tribunal’s judgment in allegation 19 (victimisation pursuant to section 27 of the Equality Act 2010 and protected disclosure detriment pursuant to section 47B of the Employment Rights Act 1996) dated 21 January 2022 against all four respondents is revoked and substituted by an order dismissing these claims.(2) The First, Second, Third and Fourth Respondent are jointly and severally liable and shall pay the Claimant:a.£20,000 for injury to feeling;b. Interest on injury to feeling calculated at 8% from 1 August 2019 to 21 December 2022 (1,239 days) at £5,431.23. - 1 -(3) The employer Fourth Respondent shall pay the Claimant a basic award for unfair dismissal in the sum of £8,976.(4) As to the compensatory award for loss of income, the Tribunal finds that there was a 15% chance that the Claimant would have retired as a good leaver on 30 April 2020, a 25% chance that he would have retired as a good leaver on 30 April 2023 and if he did not retire either of those two dates he would have retired on 30 April 2024 as a good leaver. The Tribunal will make a 10% discount across the whole compensatory award for loss of earnings to reflect the possibility of a non-discriminatory end of employment for reasons other than an agreed retirement.(5) There is not yet a finalised grand total figure for the compensatory award. A final order for a compensatory award will be produced following further input (ideally agreement) from the parties on net earnings figures, LTIP, dividends, interest on financial losses and “grossing up” as well as application of a 5% deduction for accelerated receipt of future losses and the application of a 7.5% ACAS uplift.
REASONS
REMEDY
[1]This remedy hearing was fully remote in the sense that all parties, representatives, witnesses and the members of the Tribunal joined by CVP from separate locations. Procedural history
Procedure
[2]The Claimant presented his claim on 12 May 2020 against the First, Second, Third Respondents.[3]By consent, at a case management hearing on 17 February 2021 the Fourth Respondent, the Claimant’s employer at the date of his dismissal, was added as a party.[4]The liability hearing took place 11 – 22 October 2021 and a decision upholding some of the Claimant’s claims was promulgated on 21 January 2021.[5]Unfortunately a remedy hearing listed to commence on 10 May 2022 was not effective due to a lack of judicial resources, and the matter was relisted.[6]The Tribunal has also reconsidered allegation 19 (successful claims of victimisation and protected disclosure detriment) on the initiative of Employment Judge Adkin, following a referral from the Employment Appeal Tribunal in relation to an appeal from the Respondents. - 2 -[7]The parties agreed at the hearing in November 2022 to provide the Tribunal with some assistance by agreeing some net income figures to assist in this high-value and complex case. Unfortunately in two emails dated 12 and 14 December 2022 it became clear that the parties were able to provide some assistance but not fully agree net earnings and furthermore not fully agree what they were in agreement about.[8]It has been mooted that the Tribunal provide a draft judgment on which comment could be made. The Tribunal is anxious to achieve resolution in this matter. The approach we have adopted is to try to decide what can be decided now and allow the parties to assist the Tribunal in finalising the grand total figures. Evidence[9]References thus [D/123] are to pages in the document bundle; [HB/725] are to pages in the “main” bundle which contains pleadings correspondence and the like; [S/234] to the supplementary bundle and [SB/12] to the special bundle and [R/456] to the remedy bundle.[10]The Tribunal heard evidence from the Claimant Mr and Mrs Cowie and received a witness statement which was not challenged from Mr William Kelly, a former colleague who was Global VP Finance of the Foundry Division.[11]From the Respondents the Tribunal heard evidence from the Third Respondent Patrick Andre, CEO; the Second Respondent Agnieszka Tomczak and CFO Guy Young.[12]As to documentary evidence we retained the documents from the liability hearing, namely a 8,315 page “document” bundle, a 725 “main” bundle which contains pleadings and correspondence, a 780 page “supplementary” bundle from the Claimant and 36 pages which were agreed extracts from a confidential bundle which was not supplied to the Tribunal.[13]For the remedy hearing itself we received a original remedy bundle of 565 pages, plus an additional 54 pages.[14]Although there had been some dispute between the parties about the Claimant exceeding the word limit for witness statement and regarding some late disclosure from the Claimant, the parties happily were able to largely resolve this shortly before the remedy hearing with some pragmatic concessions. The Claimant had originally tried to rely upon a “mitigation statement” in the bundle but clarified that he only sought to rely on paragraphs 72 – 74 [R/500].[15]The Tribunal has not attempted to read every document, but have instead focussed on the documents each party referred us to.[16]References to the “Corporate Respondents” denote the First and Fourth Respondents. References to the “Individual Respondents” denote the Second and Third Respondents. - 3 - Findings of fact Liability
Findings of fact
[17]The Tribunal made findings of fact from the commencement of the Claimant’s employment in 1981 until his dismissal communicated to him orally on 1 August 2019. The findings below are supplementary to those findings. Evidence on likely retirement age[18]Initially the Respondents relied on an email from Chris Young in April 2020 talking about a strong possibility of retirement in 2020. It has been clarified in correspondence that this related to someone else.[19]On 27 June 2018 Mr Ryan Van der Aa, Global Head of HR proposed an assumed retirement age for the purposes of calculations for a move for the Claimant from US to UK as “say 65” [D/1375]. This was no more than assumption for the purposes of calculation.[20]On 10 July 2018 the Claimant sent an email to KPMG, an advisor acting for the Corporate Respondents “I plan on retiring aged 62 (in 5 years)” [D/1545]. This was sent in the context of negotiations over the terms of the Claimant’s relocation from working in the USA to working in the UK. This was however against a backdrop against which in May 2018 the Claimant was feeling uneasy about the ‘under 45’ policy dealt with in detail in our decision on liability. We find that the Claimant’s thinking about potential retirement age was to some extent coloured by the prevailing discriminatory approach to managing roles, albeit as we found, this under 45 policy was not specifically applied to the Claimant nor management at his seniority.[21]In 2018 someone within the Corporate Respondents produced an organisation chart for the purposes of succession planning for senior roles [D/1074; D/1079]. That document gave the Claimant’s expected retirement age as 66. It is not clear from the document itself who the author or authors were. Neither side in this litigation has suggested who wrote it, but it does not seem to be in dispute that it was document used for succession planning, which contains this assumption.[22]On 4 March 2019 the Claimant had a private email exchange with his wife, which gives an insight into his thinking about potential departure from working for the Fourth Respondent. He wrote: “They have now changed our bonus schemes. I have to get out of here!!! The question is when. Do I hanging here to we sell the Usa house what. Medical is the issue going forward. If we stay in the USA.”[23]She replied: “Bonus was the lifeline, not just for you. * - 4 - Why don’t you speak to Gary……. just get a feel for staff. Unless time for complete laying down of tools?”[24]It is clear from this exchange that the Claimant was unhappy about changes to the bonus scheme, and that he wanted to leave at some stage. June 2019 discussion re: retirement & leaver status[25]On 20 June 2019 there was a discussion between the Claimant and Mr Andre about the Claimant’s wish to retire at the end of 2020. He said that this was said in despair because of his treatment by Mr Andre.[26]It has become relevant to the question of remedy to expand on our summary findings on this conversation contained within the liability decision.[27]The Claimant’s evidence is that Mr Andre flatly turned down his request for retirement as a good leaver. Mr Andre’s account is that he did not grant the Claimant’s request, but that his response was more nuanced.[28]In his later grievance, Claimant recorded “Spoke with PA informing him of my wish to retire at end of 2020. His response was shocking stating if I wished to retire then I would be considered a bad leaver. I informed him I was disappointed at his response as I was giving him 18 months notice and when I moved to Europe my contractual retirement age was 60 so I don't see myself as a bad leaver. Wrote PA a mail stating I would then retire at 65.”
Evidence
[29]As to what Mr Andre stated, he explained in the internal investigation of the Claimant’s grievance that what he had said was: “I neither accepted nor refused – I said you cannot on your own decide to retire on [at] your age you can resign”[30]Mr Andre’s evidence to the Tribunal is that he was doing no more than precisely stating the factual position which is that the Claimant was not yet at contractual retirement age and accordingly Remco’s (the remuneration sub-committee of the Board) starting position would be to treat him as a bad leaver. He told us that he did not categorically say that there was no possibility of the Claimant retiring early as a good leaver, but that he was simply stating the factual position. By implication, Mr Andre suggests that there remained a possibility of subsequent agreement as to the Claimant being a good leaver under the terms of an agreed retirement.[31]We have to bear in mind that Mr Andre had by this stage already made up his mind to dismiss the Claimant and in fact was in the process of recruiting his successor, although the Claimant did not know this. The Claimant leaving as a bad leaver would be less costly to the business than leaving as a good leaver. - 5 - Email follow up – 20.6.19
THE LAW
[32]The discussion was followed up by an email exchange between the Claimant and Mr Andre. The Claimant wrote: “As discussed I am hereby giving you a heads up on my wish to consider retiring at the end of 2020. I was somewhat surprised at your response that I may be considered a bad leaver but hope that would not be the case and that we can find a solution.” [6374-5][33]It follows that the Claimant was still open to the possibility that this could be negotiated.[34]Mr Andre replied: “Thanks for the heads up. Let me some time to reflect on this with Agnieszka and we will revert to you.[35]The Claimant replied to Mr Andre: “FYI a bit of history, when I was transferred to the UK at the Job Grade level I was the retirement age was 60. I am unsure what the group considers retirement now in the UK but if it is 65 then I will not be retiring at the end of 2020. I will be 60 April 28th 2021. Mr Andre’s reflections on Claimant’s view on retirement[36]On 20 June 2019 Ms Andre wrote to Ms Tomczak “We need to think now how to use his intention to retire to our advantage” “I agree that an elegant solution to be negotiated would be to transition him, at any date which suits us, as a special adviser to the CEO up to end 2020 and to accept that he would then retire as a good leaver. Do you feel the Remco would accept this ?(A bit more expensive than the dismissal but not that much—and we answer the point raised by as you rightfully mention)” .6371[37]Mr Andre told the Tribunal that sometimes Remco followed his recommendations and sometimes they did not. The email does support this. It appears from this email that Mr Andre could not rely upon Remco to simply do his bidding and that in his mind at least, retirement as a good leaver was a possibility, albeit as a negotiated settlement in which the Claimant accepted stepping out of his existing role and into an adviser role. Search for old contract[38]On 8 July 2019 the Claimant asked his wife to look for his contract for retirement age 60 since at this stage the two of them were not in the same country. - 6 -[39]On 10 July 2019 the Claimant wrote to his wife about their property in the US which they were struggling to sell: Thank, babes I really don' t Want to ask the company to buy it and then to resign. we have more ethics than that and I'm worried they ask me to stay if they buy it [D/6747] Dismissal[40]On 1 August 2019 Mr Andre informed the Claimant that his employment was to be terminated in circumstances that are dealt with in the written reasons on liability.[41]On 2 September 2019 the Claimant was taken off duties and placed on garden leave.[42]On 1 March 2020 the Claimant’s employment came to an end. Relocation expenses[43]In 19 July 2018 Mr van der Aa updated Mr Andre with the figures he was working on to cost the proposal to the Claimant to relocate to the UK. At that stage he queried with Mr Andre whether they should assist the Claimant with the cost of selling his house in the US and buying a new one in the UK and also paid relocation after retirement as long as this was South Africa (which he thought was unlikely) or the USA. Mr van der Aa plainly thought that these matters were reasonable but was seeking Mr Andre’s approval.[44]In August 2018 Mr Van der Aa wrote in a confidential “side letter” the agreement under which he was relocating from the US to be based in Tamworth, UK. This was dated 14 August, but apparently signed on 13 August. This contained the following: Performance incentive Schemes : The entitlements to be considered for AIP and LTIP set out below are subject to the remuneration policies and procedures of Vesuvius plc for members of the Group Executive Committee from time to time in force.a. Annual Bonus: An annual cash plan (so-called 'AIP') amounting to 40% of your base salary at target and 80% at maximum. The actual earnings will depend 80% on Company performance and 20% on the level of achievement against personal objectives identified with your direct management at the beginning of the performance year.b. Long-Term Incentive Plan: The Company's Long-Term Incentive Plan (so-called 'LTIP'). You will receive an annual grant of Performance Shares to a maximum value of 100% of Base Salary with vesting after 3 years on a sliding scale based on performance versus threshold, target-and-maximum criteria. 50% - 7 - of the award is based on Vesuvius' Total Shareholder Return (`TSR') relative to the TSR of the constituents of the FTSE 250 excluding investment trusts (the 'Comparator Group'). The other 5U%pfthe award based on growth in Yesvuvus' Earnings Per Share (‘EPS’) Relocation Allowance: You will receive a relocation allowance equivalent to I month's salary, paid net of income tax and National Insurance, in line with the Vesuvius International Transfer Policy, Relocation Support: The cost of shipping personal effects from the USA to the UK, will met by the Company, in line with the Vesuvius International Transfer Policy. … Home Leave: 1 return family flight per year to South Africa. 2 return flights for your spouse from the UK to USA per year. All travel should be in economy class. Repatriation at end of Employment: At the end of your employment, if you elect to do so, the company will repatriate you and your spouse to the USA or South Africa, in line with the Vesuvius Long-Term Assignment Policy [2352] Relocation policies[45]In our written reasons on liability, we identified that neither party had referred us to the correct policy governing expenses for the Claimant’s relocation from the US to the UK that was current at the material time. We concluded as follows: “103. Ms Tomczak attempted to explain the Respondents’ stance in this matter by reference to the expenses provision of a travel policy (D/7911). 104. The Claimant draws our attention to the “Employee Relocation Benefit Program Homeowner” (Effective As of November 30, 2020) (D/7969). This, it seems to the Tribunal is much more likely to be the correct type of policy to govern relocation and relocation expenses. Given its date however it cannot have been the policy in force at the time that the expenses were incurred in 2018 and the grievance was raised in 2019. We note that this is version 3. There is also a policy with a similar title which appears at (D/7982).”[46]Confusingly, we have also been referred to the Long-Term International Assignments Policy (D/8122), a 44 page document from 2017, which appears to cover long-term rather than permanent international transfers. - 8 -[47]A few months after the Claimant’s move to the UK, in February 2019 Mr van der Aa, Global HR set down what he believed had been agreed with the Claimant in Summer 2018 in advance of the relocation [D/4233] [D/4237]. This was by reference to the Claimant’s UK contract, the side letter and the applicable Local Plus policy (see below). He explained that this Local Plus policy was referred to in the side letter as an International Transfer Policy, but added the caveat: “Although the general principles in the policy were followed, Glenn's relocation was bespoke.” [emphasis added][48]A set of bespoke questions and answers were prepared relating to the Claimant’s move (D/1472). This was by Mr van der Aa the then Chief HR Officer to Mr Andre on 9 July 2018 for approval [D/1463] and collated by Nicola Thomas, Head of Reward [D/1645]. It appears to have been used as the basis for a discussion on 10 July [D/1650]. This document contains questions from the Claimant in bold and answers. Topics include keeping the Claimant’s adult daughter on US medical cover for a period of time after his departure, medical cover in the UK, company vehicle in the UK, transfer of pension arrangements from the US to UK, life insurance. Toward the end of this document there is the following: “Trips home to see children or children to visit UK (grossed up)? Yes —3 return trips per year, grossed up for tax. Maintain one taxable trip per annum to SA [i.e. South Africa] for family. Yes Relocation on retirement to country of choice. Yes —USA or South Africa only. [D/1650][49]On 11 August 2018 Mr van de Aa wrote to the Claimant about the signing of the new contract and relocation costs as follows: “I told you that we are willing to assist you in the costs of selling your house but you only sent me the estimate this week. I need to clear this with Patrick. I can not see on my Iphone if you have attached the signed documents but Patrick will not take a decision on this subject before he had (sic) seen your signed contract, so please send it now!” - 9 -[50]As to the conclusion of these discussions, we found in our earlier written reasons: “95. On August 13, 2018, the Claimant had a phone call with Mr Van der Aa. The Claimant enquired about clauses in his relocation contract. Mr Van der Aa told him that the terms were not negotiable.96. The Claimant’s evidence at paragraph 414 of his witness statement was that he and Mr van der Aa agreed orally by telephone in around 12/13 August 2018 that these costs would be paid, and that was what Mr van der Aa meant when he said “the given word binds” (i.e. confirming in writing what had been agreed orally). See [D/2268] and [D/2330]. The Respondents put forward a different interpretation.97. Following up on the call on August 13, the Claimant sent Mr Van der Aa a summary of his concerns. He enquired why Mr Van der Aa’s assurance that the company would pay the closing, legal and realtor fees for the move was not in the contract. The Claimant asked what the chances were of Mr Andre reneging on this. The Claimant had noted that the relocation allowance referred to “long-term assignment”, which meant he would stay an employee in the USA, and yet Mr Van der Aa had said this was not possible. He asked whether the relocation support should be as per the permanent relocation policy.” Local Plus policy[51]The Local Plus policy is an undated First Respondent document which appears in the liability document bundle at 8171. It as designed for moves between the country of origin (Home Country) to the destination country (Host Country) on a permanent basis. It contains the following provisions: “7 Temporary Accommodation Home country If the assignee and their accompanying family members require temporary accommodation prior to departure, the company will pay for up to 6 nights in an approved hotel or serviced apartment. … Items not covered [D/8184] The Company will not bear any shipping, customs duty, administration, transit insurance or short-term storage costs relating to the transportation of exceptional items including but not limited to: alcohol, artwork, automobiles, boats & equipment, building materials, decorative outdoor statuary, excessive canned - 10 - goods, farm equipment, furs, garden tractors, weapons and ammunition, pets, pool tables, jewelry, letters of credit, livestock, motorcycles, pianos, planes (including parts)' potted plants, recreational vehicles except bicycles, securities, snowmobiles, trailers, wine collections, heavy and bulky shop and hobby equipment, valuable antiques or paintings, other high-value items, firearms or illegal contraband. Accounting provision for relocation[52]The Claimant places particular emphasis on provisions made for in the Foundary division accounts for the cost of the Claimant’s relocation from the US to the UK. This is relied upon on the basis that provision would only be made for expenditure that was estimable and probable. The First Respondent’s CFO Mr Guy Young, accepted this as a broad principle, although clarified that provision would be made if it was probable that a liability would arise, but that the quantity and timing of such a liability might still be uncertain.[53]It was conceded on behalf of the Claimant that he would only receive payment for such items of expenses if he provided documentary evidence that the sums have been expended.[54]The figure of £160,000 was put into various documents by William “Bill” Kelly, the Global VP Finance for the Foundary division on the balance of probabilities following a discussion between Mr Kelly and the Claimant. The £160,000 figure appeared in the following documents: 54.1. In November 2018 a Profit & Loss “Bridge” [D/7188]; 54.2. In January 2019 a document entitled “Foundry – Bonus waiver related to certain restructuring activities / Bridge estimate agreed for H1 with GY/PA to FY proposal [i.e. Guy Young, Patrick Andre] [D/3771] which starts with a figure of £1,030k agreed with GY at H1 before adding and subtracting various figures sought to come up with a figure of £1,424 “requested by BK [Kelly]/GC [Claimant] at YE [year end]” [D/3772]; [insertions in square brackets added by Tribunal to aid comprehension] 54.3. Also in January 2019 a spreadsheet entitled Q4 severance recruitment bridge showed a figure of £100k for relocation GC UK move at month 9 above trading profit and £160k for the same at 12 months, with a comment “Partially booked/accrued in December” and description “Costs to move Glenn” [D/3772]. February 2019 review of relocation costs[55]On 1 February 2019 Mr Kelly emailed Gorka Jimenez-Vidal, HR Manager International Mobility, explaining that the £160k figure was his estimate made up as follows [D/4239]: - 11 - “One Month moving allowance 45k already paid Tax Consulting KPGM 15k already paid Accrual Estimates: House Sale Realtor Commission 6% of sale price 34k Home Sale Closing Costs 4k Physical Move home possession (initial) 11k Physical Move home possession (after sale) 8k Taxes on gross up of relocation costs 36k All other 7k Total estimate 160k This was fully accrued into 2018 results above trading profit”[56]This was then forwarded by Gorka Jimenez-Vidal to the Second Respondent Ms Tomczak, Chief HR Officer of the Vesuvius Group.[57]On 21 February 2019 Mr van der Aa wrote to Mr Jimenez-Vidal about his proposed response to Ms Tomczak on the topic of what had been agreed [D/4233]): “Gorka and I have had a look at what was agreed with Glenn. I have attached his UK contract, side letter and the applicable Local Plus policy. Although the general principles in the policy were followed, Glenn's relocation was bespoke. The principle was that he would get the same net take home pay in the UK as he had in the USA but would be insured for social security, incapacity, health and pension in the UK. Looking at the spreadsheet you sent, the two physical move amounts of 11k and 8k and the gross up over those (36k) are within the policy. Gorka confirms that of the total allowable cubic footage of and is 1236 cuft (Vesuvius Limit) he used 1207 cuft, so stayed within maximum. The house sale costs and house closing cost are debatable. They are not covered by the local plus policy. During the negotiations Glenn asked for the company to pay these as he would leave the USA for a prolonged period of time and gave us an estimate of US$ 52,298 total, based on a selling price of the house of US$ 775k. This would be a maximum. |discussed this with Patrick at the time and at first Patrick said that he wanted to take a decision about that once the amount was - 12 - known. After the amount of US$ 52,000 had been quoted and when the final draft of the contract was made, Patrick decided not to allow for this payment. Therefore it is not in the contract or side letter and I explained that to Glenn at the time. This must have been late August or early September last year. I have not seen the numbers for the accruals in the spreadsheet before and therefore never agreed to any of those. I remember that when we looked at the annual forecast for Foundry for full year 2018, Foundry had a total accrual for Glenn's relocation of E 200k. I said at the time to Patrick that I though it would be more in the region of £100k.[58]The following day Mr van der Aa wrote in similar terms to Ms Tomczak [D/4237]. Later discussions about relocation cost provisions[59]On 27 August 2019 Terry Finley, an employee in the finance function emailed the Claimant: “In the US we provided £97k (125k USD) in 2018 for your relocation with £79k (102k USD) remaining. In the UK accrued £24k Jul ytd with provision to reach £48k by year end for UK home purchase.” [D/7180][60]In a latter exchange Mr Finley confirmed to the Claimant that he believed that the £120k was communicated by Mr Kelly to Mr Young.[61]Mr Finley wrote to a colleague in a finance role Geoffroy Godin on 4 September 2019: “Currently there are provisions for Glenn's relocation with a portion in the US and UK as noted below. Should we leave the relocation provision as it stands for August reporting until the dust settlements with cost if any associated with Glenn leaving the company? In the US we provided £97k (125k USD) in 2018 for Glenn's relocation with F79k (102k USD) remaining currently. The change from the initial relocation provision related to household items moved from US to UK in 2019. In the UK accrued £24k Jul ytd 2019 with provision planned to reach £48k by year end for UK home purchase” [7300][62]The following month Mr Godin replied in an email chain dated 2 October 2019 “You should stop to accrue but keep the accrual until the Glenn's case is resolved” - 13 - Confidential information[63]The Claimant sent a series of emails containing confidential documents to his personal email address and his wife’s email address between 10 August 2019 and 24 August 2019 after learning that he was to be dismissed. He also forwarded new emails to his personal email account as they arrived into his work inbox. The remedy bundle contained a print out of the “meta data” relating to those files at page 201. June 2020 – Claimant’s discussion with financiers[64]In May and June 2020 the Claimant had some preliminary discussion with Mr Skip McGee, a financier based in the US, about the possibility of buying the First Respondent then delisting it from the stock exchange.[65]Mr McGee’s team prepared some material relating to this proposal to which the Claimant responded in an email dated 22 June 2020: “For now I’ll avoid adding or discussing anything that is not in the general domain.” [D/7825][66]The Respondents invite the Tribunal to draw the inference that the Claimant was intending at a later stage to share confidential information that was not in the general domain, which would be a breach of his contractual obligations.[67]The Claimant denies that this in fact happened and his evidence was that the discussions with Mr McGee did not lead anywhere. The Tribunal does not have cogent evidence to lead us to the conclusion that the Claimant did in fact divulge information outside that which is publicly available. EXPENSES[68]On 8 October 2020 the Claimant wrote to Ms Tomczak with a spreadsheet showing relocation expenses in the sum of £76,690.22 plus tax at 47% of £36,044.40 making a total including tax of £122,734.62 [D/7864].[69]There is an invoice addressed to the Claimant’s wife dated 8 June 2020 for the cost of removals from Cleveland Ohio to Alrewas, Staffordshire [D/7870].[70]Mr Susskin conceded, realistically, that the Fourth Respondent would only have been likely to pay evidenced claims. Vacation – July 2020[71]The Claimant’s expenses claim in October included car hire and 13 items in the period 4 July – 9 August 2020 entitled “Accommodation USA after house sale”. This expense claim is supported by a series of invoices for stays in what the Respondents characterise as high end beach resort hotels with expenses such as beer, wine, liquor and restaurants. - 14 -[72]The Claimant characterised this period as a move from his US home toward an airport in Atlanta in stages taking his dogs with him.[73]On 15 July 2020 the Claimant had an email exchange with Skip McGee, in which he wrote no problem but I am on vacation for a week with my daughter then flying to the UK [D/7837]. Claimant’s post-Respondent earnings[74]By a letter dated 14 April 2021 the Claimant received an offer of employment from Imerys Minerals USA, Inc as Americas Vice President for the High Temperature Solutions Business Area on an annual base salary $225,000 p.a. plus bonus and other elements to his package [D/8075].[75]The contractual documentation shows that this was agreed to be a two year assignment, with the possibility of an additional year if the Claimant remained in good standing with Imerys and the parties (i.e. the Claimant and Imregys) mutually agreed to an extension [D/8080]. Mr Cowie’s oral evidence was that he had recruited his successors in this role and accordingly did not expect to continue to be employed by Imerys beyond the two year assignment initially envisaged. Good leaver status/LTIP[76]There is evidence that senior executives leaving would be treated as good leavers as part of a negotiated settlement, e.g. Mr van der Sluis, Mr Gary Novak, and Mr Mathei. The Claimant characterised this as “standard practice” at paragraph 801(b) of his first witness statement.[77]The Claimant stated in his remedy witness statement (paragraph 10) that he understood that company severance for retirement was on the basis of “no prorating”. He admitted at the hearing that he was under a misapprehension about “pro-rating” Long Term Incentive Plan and that this would have prevented him from entering a good leaver agreement. The correct position, which the Claimant now understands, is that shares granted under the LTIP only vest after three years. A good leaver is only entitled to a pro-rata sum to reflect the duration of employment during the vesting period.[78]The Tribunal finds that on the balance of probabilities but for the discriminatory dismissal and other detrimental treatment a constructive conversation between the parties about the topic of good leaver would have resolved this problem and this in itself would not have been a barrier to the Claimant leaving as a good leaver. THE LAW[79]We are grateful to both Counsel for their written submissions, and for providing authority bundles.[80]Claimant’s counsel has referred to 19 authorities. The Respondents’ counsel has referred to 18 authorities. It is not proportionate the Tribunal to refer to - 15 - every single authority referred to by the parties. We have taken account of these authorities insofar as they are relevant.[81]Pecuniary and non-pecuniary losses which flow "directly and naturally" from discrimination are properly recoverable under "but for" causation principles: Corr v IBC Vehicles Ltd [2008] 1 AC 884. Such losses are recoverable even if the loss was not reasonably foreseeable: per Pill LJ at [37] in Essa v Laing Ltd [2004] ICR 746.[82]Where it is satisfied that there is some prospect that a non-discriminatory course would have led to the same outcome an Employment Tribunal must reduce damages accordingly: Abbey National plc and Hopkins v Chagger [2009] ICR 624. A Tribunal must avoid incorporating another guise of unlawful and/or discriminatory conduct in the Chagger exercise. On the other hand any hypothetical exercise relating to future employment in the absence of discrimination must relate to the actual respondent employer not a “reasonable employer” (Abbey National Plc v Formoso [1999] IRLR 222).[83]In Allied Maples Group v Simmons & Simmons [1995] 1WLR 1602, StuartSmith LJ endorsed the availability of a percentage approach to future losses. He said at p.1610: ‘Questions of quantification of the plaintiff’s loss, however, may depend upon future uncertain events. For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted. It is trite law that these questions are not decided on a balance of probability, but rather on the court’s assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiff’s employer.’[84]In Ministry of Defence v Wheeler [1998] IRLR 23 the Court of Appeal held that a Tribunal was entitled to assess future loss by considering different percentage chances of W remaining in the Armed Forces at different points in her career. They dismissed an appeal against the cumulative application of those percentages.[85]In O’Donoghue v Redcar & Cleveland Borough Council [2001] EWCA Civ 701, [2001] IRLR 615 the Court of Appeal found that an Employment Tribunal was entitled to find that although Ms O’Donoghue had been unfairly dismissed and victimised because of previous tribunal proceedings, her divisive and antagonistic approach to colleagues was such that it would inevitably have led to her fair dismissal within a period of six months, which amounted to an end point for the purposes of compensation. It may be possible in some cases to apply a percentage chance of dismissal at a future point, whereas in other cases it may be better to identify a date by which the tribunal could be said that dismissal would have taken place. - 16 -[86]In Wardle v Credit Agricole Corporate and Investment Bank [2011] EWCA Civ 545[2011] IRLR 604 the Court of Appeal held that it was rarely appropriate to assess compensation over the remainder of a claimant’s career. The Tribunal found that W had a 70% chance of finding an equivalent job 3 years after he was dismissed by CACIB. It followed that on the balance of probabilities his loss of earnings ceased at that point. CONCLUSIONS RECONSIDERATION Allegation 19[87]In the judgment and written reasons sent to the parties on 21 January 2022, the Tribunal found that Allegation 19 was made out as an unlawful allegation of victimisation and as a protected disclosure detriment. The allegation is “failure to involve all brief (properly or at all) the Chairman and/or the NonExecutive Directors about the Claimant’s grievance submitted on 1 October 2019, appeal against dismissal, whistleblowing report & allegations of discrimination”.[88]The Respondents appealed the decision on liability.[89]On 27 May 2022 HHJ Katherine Tucker at the Employment Appeal Tribunal used the Burns/Barke procedure to query specifically(i) which Board was being referred to at paragraph 373 of the reasons &(ii) Was, and if so, how, was the issue of whether the Claimant had a contractual entitlement to have his grievance investigated by the Board, identified as an issue within the case? HHJ Katherine Tucker suggested that the Tribunal might wish to reconsider its decision.[90]By a letter dated 23 June 2022 EJ Adkin wrote to the parties on his own initiative inviting submissions on reconsideration.[91]In July the parties exchanged written submissions and replies to those submissions. We are grateful for these succinct submissions Tribunal’s reconsidered decision[92]Allegation 19 is the failure to involve or brief (properly or at all) the Chairman and/or the Non-Executive Directors about C’s grievance submitted on 1/10/2019 (D7286-7298), appeal against dismissal (9/03/2020) (D7679-7704), whistleblowing report and the allegations of discrimination raised by C.[93]The Claimant’s pleaded case was as follows: “Paragraph 18.26: The Chairman and the Board were largely kept out of the matter so far as I am aware and a grand cover-up followed. Those actions were to my further detriment as they prevented me from having a fair investigation of the matter and allowed Mr Andre and his cohorts to pull the strings. The whole - 17 - matter was then controlled by Ms Tomczak who reports to Mr Andre (the main person I had cause to complain about), and Mishcon solicitors.”[94]The Tribunal accepts the submission of the Respondents that the context of this allegation was that the Chairman and Non-Executive Directors being referred to here are of the First Respondent (i.e. the plc parent company), rather than the Fourth Respondent, the Claimant’s employer.[95]It is not in dispute that the Claimant did not put forward the claim in the first instance as being a breach of contract.[96]The Tribunal has reconsidered afresh the evidence and submissions from the liability hearing, together with the further written submissions and replies put forward by counsel for both sides. We have looked again at the Claimant’s contract (deed) of employment dated 14 August 2018. We have not received any further witness evidence on this, nor were oral submissions made during the course of the remedy hearing. Findings of fact already made[97]The Tribunal made the following findings in our written reasons on liability at paragraph 177-185 (excluding the first six words of 180 and the last sentence of 185), which, having reconsidered, still represent our findings of fact and are repeated here for ease of reference: “177. The First Respondent’s grievance policy provides: “7.2.1.2. If the complaint is against the person with whom the grievance would normally be raised, another suitable line manager will be asked to hear the grievance.” [D/8200]178. The Claimant’s terms and conditions of employment contains the following at clause 15: “Any disciplinary or grievance matters will be conducted by the Board of Directors of the Company or its designee, in accordance with the principles of the ACAS Code of Practice on Disciplinary and Grievance Procedures and any relevant legislation.” [D/2419]179. The Claimant initially tried to get the grievance investigated without the involvement of Mr Andre. There was an email exchange between the Claimant’s solicitor and a solicitor acting for the Respondents. On 4 October 2019 Mr Campbell for the Respondents wrote: “I've discussed the position with the GC [i.e. General Counsel]. There is simply no practical way to deal with the allegations raised in Mr Cowie's letter without discussing them directly with, amongst others, Mr Andre. The Company has confirmed that it will treat the letter in line with its usual - 18 - grievance process. In the first instance this means that it should be provided to the CHRO [i.e. Ms Tomczak], who will decide how to take the complaint forward. As I'm sure you have advised Mr Cowie, the Company understands its own legal obligations that may arise from Mr Cowie's letter”180. … the Claimant was initially trying to get this grievance to be considered by the Chairman and non-executive directors of the Board.181. The grievance was passed to Ms Tomczak on 6 October 2019.182. On 8 October 2019 Ms Tomczak emailed Mr Andre at his private email address with a copy of the 1 October 2019 grievance/appeal against dismissal document [D/7301].183. The Respondents admit that Ms Tomczak took the decision that she was the most appropriate person to hear the grievance on the basis that she was the most senior HR person. She told the Tribunal in her oral evidence that she did not discuss this matter with the Board.184. The Respondents seek to justify this decision on the basis that it follows within the operational part of the business.185. When Ms Tomczak was asked about the possibility of an external person hearing this matter, her evidence was that this would not the procedure in any company, given that this was an internal process. She disagreed that this was a special situation which might justify such an approach. We did not receive evidence that Ms Tomczak was the designee of the Board. …[98]We have omitted the first six words of paragraph 180 and the last sentence of paragraph 185 above about the contractual provision given that these intimate or suggest legal conclusions rather than findings of fact and our approach has been to consider legal conclusions afresh. Contractual provisions relevant to Board[99]The Claimant’s deed of employment dated 14 August 2018 also contained the following provision: 1. DEFINITIONS For the purposes of this Agreement:-(a) The expression "Associated Company" means the Company, any holding company of the Company and any subsidiary of the Company or of any such holding company (with "holding company" and "subsidiary" having the meanings ascribed to - 19 - them by Section 1159 of the Companies Act 2006)- or which is an associated company of any such company (as "associated company" is defined in the. Income and Corporation Taxes Act 1988) and reference herein to an "Associated Company" and to "Associated Companies" includes any successor or assignee of the Company or any Associated Company and shall be construed accordingly … 3. DUTIES (a) The Employee is appointed to act as President Foundry in such specific capacity with the Company or any other Associated Company as the Company may reasonably require from time to time. The Employee may be required in pursuance of his duties hereunder to perform services not only for the Company but also for any of its Associated Companies. In the event that the Employee is appointed to such a role with an Associated Company, or is required to perform services for any Associated Company, the term "Company" herein shall mean the Company and any such Associated Company.(b) The Employee acknowledges that he will as part of his duties be expected to take part in the overall management of The Company and its Associated Companies at the highest levels. Respondents’ witness evidence on allegation 19[100]The Third Respondent Mr Andre’s written evidence on this allegation was: “135. The Claimant raised a grievance about his dismissal on 1 October 2019. This was investigated by Ms Tomczak. I was interviewed by her on 9 or 10 October 2019. I was not involved further in the investigation of the grievance. It has been suggested that I failed to brief the Chairman and other non-executives on the grievance. I did not think it was necessary or usual practice to involve the Chairman or non-executives. It would not be usual for them to be involved in the investigation of a grievance. In any event, as a subject of his grievance, it plainly would have been inappropriate for me to be communicating with the other Board members on its investigation. I confirm that not involving the Chairman and/or the other non-executive directors had nothing to do with the Claimant's age, race or any complaints he may or may not have raised.[101]Mr Andre’s oral evidence was consistent with his written evidence.[102]In the witness statement of the Second Respondent Agnieszka Tomczak she did not deny that she had not briefed the Board but said: - 20 - “In my experience it would be unusual to involve or brief the Chairman or any of the other non-executive directors on a grievance or the allegations contained in it during the process. Non-executive directors would not expect to be briefed on such matters, which fall squarely within the remit of the executives of Vesuvius and management.” [paragraph 40][103]There is no reference to allegation 19 in the witness statement of Mr John McDonough, the Chairman of the First Respondent. In his oral evidence he said that the Board reviewed the findings of the grievance, he saw the grievance, that the Board had three meetings and external advice on the process, and the Board was satisfied with the results of the investigation. He said that Ms Tomczak was “authorised and able”.[104]The contractual position regarding the Board was put to Ms Tomczak by Ms Darmas, a non-legal member of the Tribunal panel. Ms Tomczak’s oral evidence was consistent with her statement i.e. that the Chairman and NEDs would not expect to be briefed and in this case they were not.[105]There is an apparent conflict between the evidence of Mr McDonough and Ms Tomczak. There is an absence of contemporaneous documentation and it is not dealt with in Mr McDonough’s witness statement. We consider that Ms Tomczak was closer to the detail of the grievance. The impression we have is that Mr McDonough’s involvement was minimal and at a later stage, once the grievance already been investigated.[106]Importantly it was not put to Ms Tomczak in express terms that she knew at the time that the Claimant had a contractual right to have his grievance considered by the Board, nor was it suggested that she or Mr Andre had deliberately ignored or disregarded that contractual right. There is no evidence that this contractual right was drawn to their attention at the time. CONCLUSION ON RECONSIDERATION Detrimental breach of contract[107]It is clear that the Claimant had a contractual right to have grievances heard by the Board of Directors of the Company or its designee.[108]It is a possible interpretation of the clause highlighted by Mr Susskin that in the Claimant’s circumstances, whereby he worked for both the Fourth and First Respondents, the word “company” included both. Clause 15 on that interpretation would be capable of referring to the Board of Directors of either the Fourth or First Respondent. The Respondents dismiss this interpretation as convoluted. The Tribunal considers that it would be a somewhat surprising result if an employee was thereby given a contractual right to have grievances investigated by two different boards of directors. We have not received any evidence at all about the Fourth Respondent’s Board. We do not find that we need to determine this contractual point. - 21 -[109]On any view the Claimant did have a contractual right for a grievance to be conducted by a Board of Directors or designee. He did not receive that. We accept Ms Tomczak’s evidence on this point where it conflicts with the evidence of Mr McDonough, since it was she that dealt with the grievance and she was inevitably closer to the detail of it.[110]We have considered whether it is fair to conclude that the Claimant had suffered a detriment by virtue of a denial of his contractual right to a Board of Directors (or designee) investigation.[111]The contract arose in questions from the Tribunal to Ms Tomczak more or less at the conclusion of her evidence. It was not put to her that Ms Tomczak had deliberately or knowingly denied the Claimant his contractual right, or even that she knew about the contractual provision. It is not clear to us that the Claimant or his advisers at the time made such a point, although there was correspondence at around this time.[112]It was not the Claimant’s pleaded case that there was a breach of contract. The significance of that is that the Respondent witnesses were not on notice to deal with this point in their evidence.[113]Based on the evidence we cannot on the balance of probabilities conclude that either the Second or Third Respondents had in mind that there was a contractual right to the Board (or designee) dealing with a grievance.[114]In those circumstances we do not think that there is evidence to lead us to the conclusion that the denial of the contractual right was a detriment because of the protected disclosures or protected act in this case. Arguments other than breach of contract that detriment occurred[115]We have considered whether there is other evidence that was that the failure to brief or involve the Board might have been a detriment because of the protected act/protected disclosure, aside from the breach of contract point.[116]It is submitted on the Claimant’s behalf that aside from the contractual point he was a very senior manager, just below Board level, he was asking for the Chairman of the Board to consider his grievance raising very serious matters. It is further submitted that the Second Respondent Ms Tomczak was manifestly an inappropriate person to deal grievance[117]Ms Tomczak’s evidence was it was unusual to involve the Board and she considered she was the most appropriate person to deal with it. She made the point that because of the Claimant’s seniority it would not be appropriate for her to pass the matter to a junior HR colleague.[118]Our role is not to identify whether this course of action was wise, but merely whether this amounted to a detriment because of the Claimant having raised the protected act/protected disclosure. We take account of the fact that this was the main Board of a plc and the extent to which it would become involved in the case of an individual, even a senior one, would be limited. - 22 -[119]Ultimately we found that in the absence a finding of a deliberate and knowing breach of contract, we do not conclude that allegation 19 succeeds as a detriment.[120]It follows that we revoke our original decision on this point and substitute a decision dismissing the parts of the different claims based on allegation 19, i.e. victimisation and protected disclosure detriment. REMEDY FINANCIAL LOSSES Figures[121]Through the Claimant’s Schedule of Loss, the Respondents’ Counter Schedule of Loss, the Claimant’s updated Schedule, incorporating comments on the Counter Schedule and skeleton arguments the parties have agreed some key figures. We are grateful the efforts that have been made.[122]As noted above unfortunately by an exchange of emails 12 and 14 December 2022 the attempt to agree net figures was not fully successful. The Tribunal requests further assistance from the parties, ideally on an agreed basis, to calculate the loss of net income, LTIP, dividend figures as well as grossing up. RETIREMENT AGE[123]The Claimant’s case before the Tribunal is that had he been treated as a good lever he would have left at age 63. If he had not had all of the benefits that would go with departing as a good leaver he contends he would have left at the age 65. 2020 departure[124]The Tribunal finds that, absent the discriminatory dismissal there was a possibility of the Claimant agreeing to retire in 2020. This was something that he mentioned in June 2019 although did not in the event follow it through. We take account of the fact that there were changes in the bonus scheme, unrelated to age discrimination, about which he was unhappy. We have the evidence of exchanges of email with Mrs Cowie which shows that the possibility of leaving was being discussed between them privately in March 2019 when he wrote “I have to get out of here!!!”. He was not happy to be relocated to the UK away from his immediate family and there were plainly pressures on him in this role leaving aside the age discriminatory factors. There was some friction between him and Mr Andre. The organisation had high expectations of the most senior employees.[125]Were it not for the discriminatory decision to dismiss the Claimant communicated to him in August 2019 and subsequent detrimental treatment, we find that there was still some chance of the Claimant agreeing to retire as a - 23 - good leaver in 2020. We note that in his private communications Mr Andre plainly thought there was a deal to be done leading to departure.[126]We acknowledge the Claimant’s evidence that he only made his comments about retirement in June 2019 in exasperation at Mr Andre’s approach. We have been careful not to overestimate the likelihood of a 2020 departure. We find that he was strongly motivated to maximise his income before retiring. Nevertheless there was a chance of an agreed retirement at this stage, which we have assessed as 15%.[127]In this scenario we take the retirement date as 30 April 2020. We find the Claimant would want to ensure he received the bonus at the end of the financial year. Departure because of Covid[128]The Respondent contends that the Claimant would have departed during the Covid-19 pandemic on the basis that the Claimant’s income would have been less and the job would have been less valuable to him.[129]The Claimant argues precisely the opposite, that in a time of great uncertainty he would have been less likely to move. He argues that being paid less made it less likely that he would retire, since he had not yet reached a position financially where he could do so.[130]We accept the Claimant’s case on a departure caused by Covid. We accept that he was anxious to maximise his income to facilitate retirement and that he would have been unlikely to leave during the uncertainty of the Covid-19 pandemic. We accept what he says about this and we are supported in that conclusion in part by the fact that he has continued to work following termination of his employment with the Respondent. 2023 retirement[131]The Claimant told KMPG in 2018 when he was contemplating the move to the UK that he would retire aged 62. We find that there was some chance of that occurring. We find that there would have been a similar tension between the pressures of the role on the one hand and the desire to provide for retirement financially on the other as in 2020.[132]As with the comments made in June 2019, we are mindful of the background to the 2018 comments which is that the Claimant had concerns about an environment in which managers grades below him were only being recruited below the age of 45. While this was not directly discriminatory against him, it was an environment we find in which he may have felt constrained about suggesting that going to carry on working for a very long time. For these reasons we have been careful not to overestimate how likely it was that he would have departed 2023, so as not to effectively penalised the Claimant with discrimination in another guise. - 24 -[133]Do the best we can, and necessarily in a broad brush way, our assessment is that there was a 25% chance of the Claimant retiring as a good leaver at 62 in 2023. We find in this case that the retirement date would be 30 April 2023. 2024 retirement[134]The Claimant’s evidence in his witness statement on remedy is that if he could have retired as a good leaver he would have done so aged 63.[135]We accept that on the balance of probabilities that this is what would have happened had he not retired in 2020 or 2023 as provided for in our reasoning[136]We have taken account of the guidance of the Court of Appeal in the Credit Agricole case that a career long loss is rare. We find that Mr Cowie’s situation is one of those rare cases which is genuinely a career long loss. That is for two reasons.[137]First, he was comparatively close to a plausible retirement age at the point when he was dismissed. Second, the level of remuneration he received from the Corporate Respondents was at such a level that it is unlikely we find on the balance of probabilities that he will ever achieve that level of annual compensation again.[138]We find that the retirement date would have been 30 April 2024 i.e. the monthend closest to the Claimant’s 63rd birthday and again as above would ensure that he received bonus for the financial year ending the month before. ‘Just and equitable’ deduction[139]The Respondents submit that there should be no compensation or alternatively a substantial deduction on the basis that the Claimant has behaved in a reprehensible way by sending confidential information to himself in August 2019 and by implying to potential investors that he would divulge confidential information outside of information available in the public arena.[140]Mr Cowie denies having breached confidence in providing information to others. We have no conclusive evidence that he did. It is clear that the Claimant sent materials to himself and his wife in August 2019, some of which was confidential information.[141]The correct approach to assessing the compensation is on tortious principles i.e. “but for” the tortious unlawful acts, what would the Claimant have received by way of income. From this sum, credit must be given for income actually received.[142]Our finding is that but for the discriminatory dismissal which was communicated to the Claimant on 1 August 2019 by Mr Andre he would not have sent the confidential information complained of to himself, nor would he have been in the situation of discussing matters with potential investors and others. These are matters which only arose because of the discriminatory dismissal. This - 25 - being the case, it does not follow that the Claimant’s losses are curtailed on the basis that he would have been dismissed in any event. We find the breaches of confidence or alleged breaches of confidence would not have happened had the discriminatory notification of dismissal on 1 August 2019 not occurred.[143]There is a discretion to award compensation. We accept the submission put forward on behalf of the Respondents that there may be circumstances in which a winning Claimant’s conduct subsequent to a discriminatory dismissal is sufficiently egregious that this would mitigate against discretion being exercised in making an award of compensation or at least support a reduction in the level of that award. We do not find that this is such a case.[144]We find that the Claimant was motivated by wanting to amass evidence that he could first of all present to the Board, and looking ahead to rely on in potential litigation. As to his conversations with investors and others, we find that these were the actions of someone who felt wronged and was desperately trying to look for a role for himself in the future of the First and/or Fourth Respondent businesses, which had been essentially his entire career. We do not find that in the context of this Tribunal claim that the Claimant ought to be penalised for his actions.[145]Plainly if the Claimant was in breach of contractual obligations, there may or might have been remedies open to the Corporate Respondents to be pursued in other jurisdictions, about which we would make no comment. Possibility of employment ending other than as an agreed retirement[146]An agreed retirement is not the only way that Mr Cowie’s employment might have come to an end but for the discriminatory treatment.[147]We have considered whether over and above the chances of early retirement in 2020 or 2023 there should be a percentage reduction to reflect the possibility of non-discriminatory termination of the employment relationship at some stage, either resignation or dismissal.[148]We find there was a possibility of a dismissal or a breakdown in relationship, or spontaneous resignation because Claimant had simply had enough of the pressured work environment or of his relationship with Mr Andre or decided to move to another role outside of the Corporate Respondents. He might for example have simply tired of the family being in different places. The Claimant was, we find, plainly under strain in the later part of 2018 and early part of 2019 and contemplating leaving the Fourth Respondent’s employment. We find that there was some prospect of the employment relationship coming to an end other than through a planned and orderly retirement at a time of Mr Cowie’s choosing. These are reasons why we find should make a reduction for the “vicissitudes of life” over and above the likelihood of a planned and agreed retirement.[149]Such a reduction is necessarily a “broad brush” assessment. In assessing this figure, we must consider the situation as if there had been no age discrimination. We have considered that Mr Cowie had had a long successful - 26 - career with this firm. Mr Cowie is someone enjoys and derives satisfaction from his work and that he works hard. At his level of seniority in a publicly listed company Mr Cowie was unlikely to be placed on a formal performance plan since this was the sort of step that might cause uncertainty and concern to investors. We do not accept that as of 2019 there was a clear basis for a fair performance dismissal. Finally, we bear in mind that even on his own case Mr Cowie was in the final few years of his career; we are not taking account of the likelihood of a non-discriminatory departure over several decades, which might be thought to be reasonably large.[150]Most of these factors point in the direction of a comparatively modest likelihood of employment coming to an end for a non-discriminatory award. Given this and the fact that we have already dealt with the possibility of agreed and planned retirement in 2020 or 2023 separately we have made a broad brush assessment of the appropriate reduction for a non-discriminatory end of employment other than planned retirement being 10%.[151]We have stood back to ensure that we are not doing a disservice to Mr Cowie by making a deduction in this way. We have considered this point carefully and do not believe that we are. Given the stage of Mr Cowie’s career and the amount of evidence pointing to various different possible future retirement ages, we consider it is appropriate to take account of this evidence in making the deductions we have in relation to 2020 and 2023. An agreed retirement as a good leaver is one of ways that the Claimant’s career with the Fourth Respondent might have come to an end. The other factors we have considered, which might be described as “vicissitudes” are distinct and accordingly we have made this further deduction across the whole compensatory award for loss of earnings. Good leaver / bad leaver[152]The Tribunal finds that on the balance of probabilities had he not suffered from unlawful discrimination or detriment the Claimant would have left as a good leaver, for two principle reasons.[153]First there is evidence of other senior employees agreeing a “good leaver” status as part of their departure.[154]Second, we find on the balance of probabilities that the First Respondent’s Remco would have approved a “good leaver” departure, especially as part of an agreed retirement. Expenses[155]The approach to assessing the various elements of the expenses claimed by the Claimant is a tortious one, rather than a strict contractual one. We are assessing what he would have received but for the discriminatory dismissal of 1 August 2019 and the detrimental treatment in the claims of victimisation and protected interest disclosure allegations 20, 21, 23 & 27, specifically out of the failure to deal with the grievance submitted on October 2019, the outcome to which was 24 February 2020; the failure to deal with the appeal submitted on - 27 - 9 March 2020 and the decision to treat him as a bad leaver, which flowed from a decision of Mr Andre on 21 November 2019.[156]The contractual and policy documents are not irrelevant, since these inform our assessment of what the Claimant would have been likely to receive particular sums. It is also relevant to consider what the Claimant agreed at the time of his move to the UK in 2018 and also the provisions that have been made by the Corporate Respondents in their accounts.[157]Mr Susskin rightly in our view conceded that the provisions in accounts are not the end of the matter. Before Mr Cowie would have been paid anything by the Fourth Respondent, there would need to have been evidence that he had expended those sums. We find that an organisation of this size, and publicly listed one, had a well-developed finance function that would not be authorising substantial payments without a clear paper trail.[158]We have noted that Mr Andre regarded the level of provisions made as being a provocation, suggesting that he considered that it was something of a protest on the part of Mr Cowie, most likely because he did not wish to relocate to the UK. Even had the Claimant remained in employment there would have been a critical eye cast over any expenses claimed. Relocation expenses[159]The Tribunal found that the treatment of relocation expenses was not in itself an unlawful act.[160]The Claimant puts forward this claim on the basis that the failure to pay him his proper relocation expenses naturally flows from the discriminatory dismissal on 1 August 2019.[161]We have noted the contemporaneous emails of Mr van der Aa in February 2019, which make clear that the agreement reached with the Claimant the previous Summer was “bespoke”. In those circumstances, we find that the Respondents would have given the terms of the “side letter” priority over any policy documents in the event of a conflict between the two documents. CALCULATIONS Basic award[162]The parties agree the basic award is £8,976. Four periods of loss[163]It is convenient for the purposes of discounting for future possibilities and also to draw the distinction between future and past loss to consider four distinct periods.[164]Periods 1 and 2 are past losses. Periods 3 and 4 are future losses. Discounts are set out below. - 28 -[165]Period 1 between termination on 1 March 2020 and 30 April 2020 at which point there was a 15% chance of retirement.[166]Period 2 between 1 May 2020 and a date of assessment of 31 December 2022 representing the end of past loss (this date taken for convenience of calculation as this is a month end).[167]Period 3 between 1 January 2023 and 30 April 2023, representing future loss until the point where we find there was a 25% chance of retirement.[168]Period 4 between 1 May 2023 and 30 April 2024 representing the final period of future loss. Cumulative discounts[169]We have taken account of the legal authority that probability/likelihood discounts may be applied cumulatively (e.g. Wheeler). We consider that approach is the appropriate one in this case. Plainly this is not a highly scientific exercise, since the percentages represent the impressions of the Tribunal. We are compelled by authority to carry out an exercise in assessing likelihood even though it is speculative. It is based on the Tribunal’s experience and impressions based on the evidence. The overall picture, we find, is that there was a diminishing likelihood over time in the period 2020 to 2024 of the Claimant remaining in employment. The cumulative percentages below reflect that diminishing likelihood.[170]It follows from our findings above that Mr Cowie should receive 170.1. For period 1 90% of his net loss of earnings between termination and 30 April 2020, reflecting the 10% discount; 170.2. 76.5% of his net loss of earnings between 1 May 2020 and 30 April 2023, representing the Tribunal’s finding that there was a 15% chance of retirement in 2020 as well as the 10% discount (i.e. 85% x 90% = 76.5%), which breaks down as follows: 170.2.1. For period 2 from 1 May 2020 to 31 December 2022 (past loss); 170.2.2. For period 3 from 1 January 2023 to 30 April 2023 (future loss); 170.3. For period 4 57.375% of his net loss of earnings between 1 May 2023 and 30 April 2024 (future loss), representing the Tribunal’s finding that there was a 15% chance of retirement in 2020, then a 25% chance in 2023 as well as the 10% discount (i.e. 85% x 75% x 90% = 57.375%). Personal Bonus[171]As to personal bonus in May 2020, but for his discriminatory treatment we find that the Claimant would have received an assessment of 10% of gross annual - 29 - salary, i.e. £34,000 as claimed. We accept the Claimant’s case that he was unfairly marked down for his performance. The evidence that we have received is that 10% would reflect achieving targets, not over achieving since the maximum under the scheme was 20%.[172]For the March 2021 personal bonus we find that the Claimant would also have received a 10% assessment. We rely upon his history of good performance in making this assessment.[173]Similarly for the personal bonusses in March 2022, 2023, 2024 we find that the Claimant would have received a 10% assessment for similar reasons to those Business bonus[174]For March 2023 the Claimant claims a business bonus of £294,451, representing an 8% increase on the agreed business bonus expected to have been awarded in March 2022 (80% of salary for that year). The Claimant submits that this best reflects recovery after Covid-19.[175]The Respondents’ case is that an estimated average of March 2020 (0%), March 2021 (20%) and March 2022 (80%) is the best approach.[176]The Tribunal accepts the principle that taking previous years’ bonus percentage is a useful approach. We feel that taking March 2020, i.e. a bonus of zero is unrealistic since that reflected a particularly difficult year, the unusual circumstances of which are unlikely to be repeated. On the other hand, we feel taking 80% bonus as in March 2022 risks overcompensating the Claimant.[177]We find that the appropriate figure is to take an average of the previous two years level of bonus, i.e. 50%, representing the arithmetic mean of 20% and 80%[178]For March 2024 the Claimant claims a business bonus of £303,197, representing an 8% increase on the projected business bonus for the previous year (itself 8% increase from March 2022).[179]The Respondents’ case is that an estimated average of March 2020, March 2021 and March 2022 is the best approach. Again, and for similar reasons to the equivalent March 2023 figure we find that the appropriate figure is to take an average of the of the March 2021 and March 2022 bonuses, i.e. 50%, representing the arithmetic mean of 20% and 80%, since this uses the last two years’ known data. Dividends[180]The Claimant claims 4% average dividend. - 30 -[181]The Tribunal find that this is a reasonable estimate and accordingly will award dividends to which he is entitled calculated as 4%. LTIP/Dividends[182]There appear to have been a number of points which were agreed relating to the Long-Term Investment (LTIP) scheme, in which shares granted to the Claimant would vest over a three-year period.[183]It is understood that periods 1 and 2 at least are substantially agreed.[184]At the remedy hearing the Claimant acknowledged that he had been wrong to maintain that all of the shares would vest in full for an early departure and a principle of pro-rating would apply such that unvested shares would only vest according to the proportion of the vesting period for which he was employed. It follows from our finding that the Claimant would have retired at the latest by 30 April 2024, that he would not receive any shares for periods beyond this point. As we understand it the grants of shares would have vested at this point representing the full value of the 2021/24 LTIP scheme, two thirds of the 2022/25 scheme and one third of the 2023/2026 scheme.[185]It is not a good use of Tribunal’s time to attempt to make sense of the multiple documents generated by the parties with regard to LTIP and dividends payments given that it is now unclear following the emails of 12 and 14 December 2022 what is agreed and what is disputed. Family trips home[186]The Claimant claims the following items: [remedy bundle 80, 87] 186.1. Family trips back to South Africa, as part of annual benefits £6,400 In the spreadsheet provided by the parties on 12 December with net payments substantially agreed, this item is not agreed and the Claimant has claimed figures in excess of his Updated Schedule, namely £13,788 in December 2022, £14,913 in December 2023 and £15,510 for 2024; 186.2. Annual Trips for Spouse Home to USA (expensed), as part of annual benefits £3,000; 186.3. Daughter’s flight home with family previously not claimed, as part of a one-off miscellaneous expense £1,800;[187]The Respondents argue that this was not an entitlement to an payment, but an entitlement for expenses to be covered, and further that the Claimant has provided no evidence of such expenses. As to the annual trips for spouse the Respondents makes the point that the Claimant is now based in US will not be encouraged these expenses.[188]The Claimant maintains that this is a recoverable loss as an annual benefit he lost from dismissal. - 31 -[189]As to evidence, it appears that £8,610.05 worth of family travel was incurred on CyberShift Boomerang [D/7262] in July and August 2019, representing 6 flights. The supporting documentation suggests that there were three flights from the UK to South Africa [D/7263-5] and two flights from Cleveland Ohio to the UK [D/7266- ].[190]In September 2019 Mr Andre refused to approve the “family trip” as he was not sure if it was “correct”. He was advised in an email dated 11 September 2019 by Ms Tomczak that even though he was on garden leave he was entitled to benefits under the terms and conditions of his employment which included one return family flight year to South Africa and 2 return flights for his spouse from the UK to USA (all travel in economy).[191]It is unclear what class of travel the flights to South Africa evidenced are. The flights from Cleveland to the UK are “Global Premier Upgrades”, which the Tribunal assumes is a more expensive option than economy flights, and therefore falling outside of the contractual entitlement.[192]The fact that the Claimant may not have claimed these items since termination of his employment with the Fourth Respondent is not determinative of the issue. The measure of damages is to put him in the position as if the tort had not occurred. Had he remained in employment, we find on balance of properties that he would make a claim and been reimbursed for it.[193]We not satisfied on balance of probabilities that he has proved either the £1,800 one-off miscellaneous claim for his daughter’s flight, nor the escalating value of expenses contended for family flights in December 2022 and subsequently in 2023 and 2024.[194]On the other hand there was a contractual entitlement, as Ms Tomczak recognised in her email. We find that £6,400 (the figure in the updated schedule of loss) is a reasonable estimate for the cost of six long-haul flights (4 to South Africa; 2 transatlantic), bearing in mind that they should be economy but that if taken at for example a traditional holiday break such as Christmas or Easter, it might be not be possible to find the cheapest prices. In those circumstances we will award £6,400 p.a. for the remainder of Mr Cowie’s employment for the combined flights to South Africa and transatlantic flights, but not an additional £3,000 element claimed which appears to us to be in excess of the contractual provision for economy flights and on the balance of probabilities not likely to be covered. Private medical insurance[195]The Claimant claimed £1,700 p.a. which the Respondent agrees pending evidence.[196]The evidence is not entirely complete, but there is evidence of the Bupa annual premium being £1,642.91 back in 2018/9 when the Claimant first moved to the UK. We infer - 32 -[197]On this basis the Tribunal will allow the sums claimed for annual private medical insurance. Life insurance[198]In the third page of the Claimant’s Reply to Respondent’s Counter Schedule [R/136] the Claimant clearly agreed not to pursue this item in view of comments in the Counter Schedule.[199]It was somewhat surprising therefore to see that this item reappear in the Claimant’s “agreed” excel spreadsheet. 200. £0 is awarded for this item. MISCELLANEOUS EXPENSES[201]We remind ourselves that the burden is on the Claimant to prove these losses.[202]Fuel for private vehicle was not pursued. £0.[203]USA tax submission claimed as £1,081.20 (a conversion from USD$1,265) for an invoice dated 10 June 2020. We are not satisfied that the Claimant had a contractual entitlement under his UK terms and conditions for this item to be covered. £0.[204]Hotel accommodation for which £10,394 was claimed and car hire £2,855. We accept the position of the Respondents that this appears to be an attempt to recover a “vacation” on expenses. We are not satisfied that any of this would have been paid or should be recovered as part of this claim. £0.[205]Pet relocation for which £9,800 is claimed. It is clear from the section of the Local Plus Policy dealing with items not covered [D/8184] that transportation of pets is not covered. £0.[206]Second shipping container for household goods for which £11,981 is claimed. There are invoices from Pickfords removals dated 8 & 10 June 2020 in support of this claim [D/7870-1]. The Local Plus Policy at clause 9.9 covers the shipping of household goods up to the limit in appendix C [D/8183]. Appendix C provides, in the case of unfurnished accommodation, for 35cbm contained + 10 cbm per child [D/8189]. We note that two provisions for physical move home possessions had been made – £11,000 for the initial move and £8,000 after sale [D/4238-9]. Mr van der Aa confirmed that the Claimant stayed within the policy allowable cubic footage. We find that on balance this sum would have been paid and can be recovered in full. £11,981.[207]Air fares for which £7,201 is claimed. The Claimant relies on [D/7864-7904]. This does not however provide evidence for the sum claimed. D/7867 is evidence of a flight from London to Cleveland on 20 November 2019, cost $1,206.85. Taking a conversion rate of USD$ per £ as 1.2 suggests in round figures a figure of £1,000, which we allow. - 33 -[208]Taxi, £170 is claimed, evidenced by a receipt dated 5 September 2019 to the Claimant’s home address from Heathrow airport. We consider this should be recovered at £170.[209]Cost of selling US home for which £29,763 is claimed. That the amount was expended is evidenced by a “Seller’s Settlement Statement” from the Ohio Real Title Agency, LLC, which shows costs, totalled in a handwritten note at $36,013.25. As to the Claimant’s entitlement to recover this sum, this type of expense is not covered by the Local Plus policy. Mr Van der Aa acknowledged in an email dated 22 February 2019 that the Claimant was out of pocket [D/4237], but describe the house sale costs and house closing costs as “debatable”. He said that Mr Andre wanted to know the cost before he would agree anything.[210]Back on 11 August 2018 Mr van der Aa emailed the Claimant in the following terms: “we are willing to assist you in the costs of selling your house but you only sent me the estimate this week. I need to clear this with Patrick [Andre]” Mr van der Aa then put some pressure on the Claimant to agree new terms to move to the UK without this question of US sales cost being fully agreed. We find that there was an intention (certainly in Mr van der Aa’s mind) to pay something to “assist” the Claimant, but this was by no means a blank cheque, nor was there a concluded agreement on this point. It is not clear that the parties agreed in terms that the full cost of the U.S. House sale would be covered. Mr Andre wanted to know what the actual cost was going to be. We find that the Respondents would have provided some assistance, amounting to less than the full amount claimed but nevertheless a substantial and meaningful sum. Doing the best we can we assess that figure as £15,000, which we award.[211]Tax advice for which £3,000 is claimed. We do not find that the Claimant has, to the required standard, evidenced that he paid this sum and his entitlement to recover it. £0. Retirement to South Africa[212]The side letter provided that the company would repatriate the Claimant and his spouse to the USA or South Africa in line with the Vesuvius Long-Term Assignment Policy. The repatriation allowance under that policy is to allow one twelfth of base salary to cover all miscellaneous incidental expenses associated with the relocation to the home country, but individual relocations expenses would not be covered [D/8154].[213]On the balance of probabilities we find that the Claimant would have chosen to relocate and been paid a one month settling in allowance on relocation at retirement £28,333 (1/12th base salary) but no other item. We are not satisfied that the Claimant was entitled to recover a fee associated with the new house - 34 - South Africa of £61,400, nor a sum for moving dogs, furniture, airfares, etc of £33,000.[214]We award £28,333. Other expenses[215]We are not satisfied that the £2,400 claimed for “travel expenses between USA and New Zealand to jobhunting” and the £3,900 for “expenses incurred travelling between UK and US to find US job” have been adequately evidenced nor that these were reasonably necessary steps to mitigate the Claimant’s loss. £0. Credit for income received[216]We note that the Claimant gives credit against his loss of income for the following sums: 216.1. Annual salary with Imerys $207,692 (1.2 exchange rate suggests £173,076); 216.2. Annual benefits £12,882; 216.3. Annual bonus decided in April 2022 £38,790;[217]It was not clear to the Tribunal whether the mix of currencies in the schedule was deliberate or accidental.[218]As to the annual bonus to be decided in April 2023 the Claimant’s simply says TBC (to be confirmed). In the absence of any other data, the best the Tribunal can do is to assume a bonus at the same level, £38,790.[219]Gross income for the period April 2021 – April 2023 - for ease of calculation we have assumed that the Claimant received an annual package of salary plus benefits plus bonus of £224,749, which we have apportioned on the basis of 89 weeks in the past (for ease calculation to 31.12.22) and 15 weeks’ future loss (from 1.1.23), giving an income of £384,666 for credit to be given for in the past loss period and £64,831 in the future loss period.[220]The Claimant contends in his Reply [R/149 paragraph 1.23] that he has a residual earning capacity as a consultant earning £50,000 per annum. We accept this position which was not challenged at the remedy hearing and find that credit should be given accordingly. We find that from 1 May 2023 onward he will earn £50,000 p.a. Again credit should be given for that.[221]The Tribunal assumed, although this may not be correct, but all of the sums in this section are gross rather than net and would be subject to US tax deductions since the Claimant was working and has relocated to the US throughout this period. The Claimant is requested to confirm this provide and the appropriate net figures all in GBP, with supporting evidence. - 35 - Discount for accelerated receipt[222]Both parties agree that in principle there should be a discount for accelerated receipt of sums representing future losses. Neither party suggested a particular figure.[223]The Tribunal considers that a discount of 5% for future losses is appropriate. Given that the element of future loss is a little over one year from 1 January 2023 to April 2024, using a broad brush the Tribunal will apply a single 5% deduction in respect of future losses. ACAS uplift[224]The Claimant claims an 10% uplift for an unreasonable failure by the Respondents to comply with the relevant ACAS Code on conduct/grievances. The Schedule of Loss sets out the matters relied upon at paragraphs A-O.[225]The uplift under section 207A Trade Union and Labour Relations (Consolidation) Act 1992 is engaged in two ways.[226]First, although the Fourth Respondent has pleaded that the dismissal was some other substantial reason (“SOSR”) our finding is in reality that both the Second and Third Respondent considered this to be a performance dismissal. This was not SOSR where capacity was not in issue. The significance of that is that the Claimant ought to have been invited, in writing, to a disciplinary hearing and given an appeal right. He was not granted these basic procedural rights.[227]Second, there was a grievance, which we find was not satisfactorily handled. There was no grievance meeting. The Claimant did not have the benefit of an appeal.[228]We find that these failures were unreasonable.[229]As to the level of the uplift, it is appropriate to take account of the absolute value of the uplift as well as the percentage. In other circumstances, in a lower value case it might have been appropriate to make a higher percentage increase under section 207A. We find that the Claimant has realistically contended for an uplift at a lower end of the scale. Taking account of the substantial award of damages involved in this case we reduce the uplift figure further from 10% to 7.5%. In our assessment that strikes the appropriate balance between taking account of the procedural failures on the one hand and not overcompensating the Claimant on the other. - 36 - NON-FINANCIAL LOSSES Injury to feeling[230]The Claimant contends that there should be a separate awards for injury to feeling, totalling £54,000 comprised of £12,000 for the protected disclosure detriment, £12,000 for victimisation and £30,000 for discrimination, including dismissal.[231]By contrast the Respondents contends for a single order of £15,000.[232]Awards for injury to feeling are to compensate the successful claimant for the effect of the discrimination/detrimental treatment on them, not to punish or penalise respondents.[233]We have considered the Claimant’s evidence on injury to feeling in his witness statement on remedy: “40. It is hard to describe fully the mental anguish that I suffered as a result of the company’s treatment. It was severe and lasting. I had devoted 37 years of my life to the company.41. I lost confidence. I felt very low. In late 2019 I suffered deeply depressive and anxious periods that I had never had before.42. From August (D/7182) to December 2019 I visited a doctor several times. There was concern about my heart. I was prescribed medication to help with anxiety and sleep, including Diazepam.43. I still do not really have a full night’s sleep but am fortunately not using medication now. I stopped taking medication in mid2021, concerned about reliance on sleep medication.[234]We accept Mr Cowie’s evidence about the effect on him. This is not challenged. We also accept that that his low feelings and anxiety have been caused by his discriminatory treatment.[235]We accept Ms Belgrove’s submissions that where there are different forms of discrimination arising from the same act, a composite award is appropriate. It is the same injury. We also accept her submission that the usual award is that in the case of concurrent discriminators each individual respondent is jointly and severally liable and there is not discretion to apportion liability, except where the injury caused by the claimant is “divisible”.[236]Although the Tribunal has not found precisely the same unlawful acts proven against each one of the four respondents, this is not a case in which there is “divisible harm” which could sensibly be apportioned to different causes of action nor successful allegations within the claim nor to specific Respondents. From his point of view from late 2019 he has felt low and anxious. We note that in 14 April 2021 he received an offer of employment and in mid-2021 he stopped taking medication. - 37 -[237]Tribunals may have regard generally to the level of compensation awarded in personal injury cases. Mr Cowie has not put his case as one of personal injury, we do not have expert medical evidence and it is not the case that Tribunals should attempt to read across precisely from the Judicial College Guidelines for personal injury, but we have had regard in to the level of damages for psychiatric damage, as a point of reference rather than determining the precise amount in this case.[238]We have taken account of the effect on the Claimant. We that happily he has been able to commence work in another role which we infer from the limited information we have about it is a demanding role requiring a relocation back to the USA. We find that in the case of the Claimant there is an element of stoicism in getting on with things. That is to his credit, and in the context of his claim for financial losses demonstrates that he mitigated his losses.[239]We find that the injury to feeling was significant but not at the top end of the scale of the cases that the Tribunal deals with. The Tribunal finds that the injury to feeling this case is toward the upper end of the middle Vento band as updated for claims brought from April 2020 onward.[240]In our assessment the appropriate level of compensation is £20,000 for injury to feeling.[241]All four Respondents are jointly and severally liable for this award. Aggravated damages[242]The Claimant claims £6,000 aggravated damages. In the schedule of loss the reason for this is: “The Claimant claims aggravated damages based on the extent of the detriment and upset that he has suffered after a 38-year career; the serious nature of the Company’s unlawful treatment of him; the Respondents’ complete failure to apologise at this point; the nature of the victimisation imparted upon him; and the Respondent’s failure as yet to take any action against the perpetrators of the discrimination and victimisation.[243]Guidance on awarding aggravated damages was provided by the Employment Appeal Tribunal in the case of Commr of Police Metropolis v Shaw [2012] ICR 464 EAT (endorsing test from Alexander v Home Office [1988] ICR 685): “... compensatory damages may and in some instances should include an element of aggravated damages where, for example, the defendant may have behaved in high-handed, malicious, insulting or oppressive manner in committing the act of discrimination”[244]It may be appropriate award to make a separate award for aggravated damages where conduct is based on prejudice, animosity, despite or vindictiveness if the Claimant is aware of the motive or by subsequent conduct - 38 - such as where a case is conducted in an unnecessarily offensive manner or serious claimant is not taken seriously.[245]Underhill J in Shaw doubted whether it was necessary to make a separate award for aggravated damages, although this Tribunal acknowledges that that is sometimes the approach that Tribunals take.[246]As to the extent of the detriment and upset, the Tribunal has factored this in to the level of the award for injury to feeling. Although the award for injury to feeling is dwarfed by the financial losses in this case, the award of £20,000 is not a trivial sum and in the context of other cases would be seen as being substantial.[247]This litigation has been fought robustly on both sides and it is right to say that there has been little by way of conciliation.[248]We do not find however that there is any particular feature of case that suggests high-handed, malicious, insulting or oppressive conduct that has demonstrably added to the degree of distress suffered by the Claimant that was inevitably suffered by him in the losing of his job after a career with the Corporate Respondents for so many years. In these circumstances we are not going to make an additional award for aggravated damages. Interest[249]Interest on injury to feeling is calculated at 8% on the date of discrimination to the date of assessment (1,240 days).[250]Injury past financial losses will be calculated at 8% from the midpoint between 1 August 2019 and the date of assessment. LEGAL COSTS[251]Legal costs are referred to in the scheduled loss [R/95].[252]This is not a fully argued costs application, and we make no determination upon it.[253]The parties of course will be aware that costs do not “follow the event” in Employment Tribunal litigation and the costs jurisdiction is restricted by the Tribunal rules. The parties may wish to reflect before pursuing a costs application given that criticisms could be made in respect of the conduct of both sides in this litigation. FINALISING FINANCIAL LOSSES Settlement[254]The decisions on quantum and points of principle decided by the Tribunal in this remedy decision mean that there should not be a significant amount of uncertainty and the case should be capable of settlement. - 39 -[255]Parties are encouraged to see whether they can agree these sums without further reference to the Tribunal. Net income[256]The parties are requested to attempt to agree the relevant net figures for both the income that Mr Cowie would have received in employment and the income that he has received post-termination based on our findings above. LTIP/Dividends[257]The parties are requested to assist identify the net LTIP vesting/dividend losses in the four different periods of loss identified by the Tribunal discussed in detail Grossing up[258]“Grossing up” is an increase applied to an award of compensation by the Tribunal to ensure that a claimant is compensated for the true net loss. It should be calculated to take account of the elements of the compensation that will be taxed.[259]Mr Cowie and his advisors are better placed than the Tribunal to calculate the tax that will need to be paid on this award, since it may depend on other income outside of our knowledge and in which jurisdiction or jurisdictions he will be paying tax.
Hearing
[1]The Claimant shall by 18 January 2023 provide a Schedule, in an Excel compatible file, providing clear calculations and totals: 1.1. Reflecting the judgment sums above; 1.2. Providing net figures in pounds sterling for post-termination income from Imerys (with supporting evidence) and the assuming future contracting work; 1.3. Calculating interest on past losses; 1.4. Deducting 5% from future losses for accelerated receipt; 1.5. Applying ACAS uplift; 1.6. Grossing up, with details of calculations. - 40 -[2]The Respondent shall by 8 February 2023 respond to the Schedule indicating whether any points are in dispute and if so providing its own calculations.[3]By 22 February 2023 the parties shall jointly submit an Excel sheet to the Tribunal either with entirely agreed figures for judgment to be entered or if there are points in dispute, what the dispute is and relevant references. The parties should indicate whether in their view a further hearing is required or whether this can be dealt with as a paper exercise.[1]This second remedy hearing was fully remote in the sense that all parties, representatives and the members of the Tribunal joined by CVP from separate locations. Procedure History[2]The Claimant presented his claim on 12 May 2020 against the First, Second, Third Respondents. By consent, at a case management hearing on 17 February 2021 the Fourth Respondent, the Claimant’s employer at the date of his dismissal, was added as a party.[3]The liability hearing took place on 11 – 22 October 2021 and a decision upholding some of the Claimant’s claims was promulgated on 21 January 2022.[4]At a reconsideration and (first) remedy hearing in November 2022 the Tribunal varied its decision on allegation 19 and dismissed complaints of victimisation and protected disclosure detriment specifically in relation to that allegation. First judgment on remedy[5]A judgment with written reasons on remedy dated 22 December 2022 (“the December 2022 judgment”) was unfortunately not promulgated and sent to the parties until 10 January 2023 due to administrative delay. That decision gave a definitive figure for injury to feeling, interest on injury to feeling and the basic award for unfair dismissal. As to the compensatory award, the Tribunal made detailed findings about the likelihood of the Claimant leaving employment at various dates due to an agreed retirement or for other reasons. A figure of 5% was decided for accelerated receipt of future losses. The Tribunal ordered a figure of 7.5% for an ACAS uplift.[6]The parties were ordered to assist the Tribunal in finalising a figure for a compensatory award given that a number of elements required the parties’ input due to the absence of clear evidence or agreement, specifically net earnings figures, LTIP, dividends, interest on financial losses and “grossing up”.[7]A case management order provided in a series of stages for the parties to jointly produce an Excel spreadsheet to allow the compensatory award to be finalised. For a variety of reasons neither party complied with that order, including possibly the administrative delay in the promulgation of the decision with the case management order. The result was that rather than having four weeks to - 2 - comply with the order, the Claimant only had eight days between promulgation of the order on 10 January 2023 and the deadline on 18 January.[8]On 25 January 2023 the Claimant sadly suffered a heart attack before he could comply with the first order. This led to a delay of several months. Inter party correspondence[9]Where references below refer to the Claimant and Respondents communicating, this is shorthand. All correspondence was on their behalf by their solicitors.[10]There was then substantial correspondence over a number of months during which limited progress was made on agreeing the outstanding points. The parties were unwilling to engage with the production of an agreed single document which is what the Tribunal had directed.[11]On 14 April 2023 a spreadsheet was provided by the Claimant to the Respondents. This document used some of the Respondent's own numbers from a document setting out various scenarios from the first remedy hearing.[12]On 21 July 2023 a letter from the Claimant sent to the Respondents which explained the attached spreadsheet. This included the grossing up element for South Carolina tax [SB2/193] which is explained below.[13]On 31 August 2023 a further version of the spreadsheet was provided by the Claimant. The Respondents complain that they were not supplied with all supporting evidence. In the Claimant’s covering email it contained the following: "Please state any disagreements of principle (or of fact) in your cover letter in reply in a way that is readily understood by ourselves and our client (or indicate with clearly indicated notes on the document any disputed elements with some explanation).[14]The Claimant complained in a letter dated 13 September 2023 that the Respondents’ spreadsheet did not have the functionality showing the underlying calculations.[15]Two days later on 15 September 2023 the Respondents wrote a letter to the Tribunal querying the lack of supporting evidence and complaining that the Claimant’s spreadsheet did not have the necessary degree of transparency in particular in relation to net/gross figures. That letter contained the following: “The Respondents are currently preparing their response to the spreadsheet provided on 31 August 2023. The Tribunal will no doubt appreciate that this is not a straightforward exercise and requires input from both legal and tax teams across different jurisdictions.” - 3 -[16]On 16 November 2023 the Respondents enclosed their own "spreadsheet", although this was apparently not in excel. This mentioned South Carolina tax and said that it was a matter of choice where the Claimant chose to live. This letter went on to suggest that the Respondents’ accountants believe that the Claimant’s tax calculations overstated what he would ultimately in tax after his end of year assessments. They requested copies of his end of year tax assessment for all completed US tax years and confirm further reductions and rebates the Claimant expected to apply for current and future years. Case management – November 2023[17]There was a further case management hearing in November 2023 at which Employment Judge Adkin listed the second remedy hearing. Counsel at that hearing had some hope that various matters might be agreed. Ultimately that is not how matters played out.[18]The second remedy hearing could only be listed in March 2024 due to the nonavailability of the Tribunal panel members and counsel’s congested diaries. Valuation of the successful claims[19]As to the final figure, the parties are very nearly £1,000,000 apart.[20]The Claimant’s spreadsheet “C Master Spreadsheet V3” gives a final grossed up figure of £3,044,427.[21]The “Respondents’ calculations spreadsheet – 14 March 2024 (updated 22 April 2024)” gave a final grossed up figure of £2,076,170. Correspondence between November 2023 and March 2024 hearings[22]By an email 9 February 2024 the Respondents continued to query the Claimant’s tax situation: “You have told us that your client's calculations of his mitigation earnings are based on the at-source tax deductions made by his employer. However, you have also told us that your client's tax affairs are complex and require many differing factors to be taken into account. We naturally conclude therefore that the net mitigation figures currently provided by your client are not an accurate reflection of the tax he has paid. Your client's obligation is to provide accurate net calculations to the Tribunal. He should have done so at the outset of this matter, years ago. The fact that we are repeating our correspondence is only indicative of your client's continued failures. We do not doubt that there may be a level of complexity involved in this exercise, indeed many of these remedy calculations are complex, but the Tribunal is more than capable of grasping complexities. We do not agree that the Tribunal will be willing to accept your client's current figures as accurate; to do so would be - 4 - to risk a resultant award which recovers greater (or lesser) sums than the losses your client has been awarded in principle. There is no need for expert evidence here, simply accurate evidence from your client. Continuing in this line of correspondence is incurring unnecessary costs and delays for the parties, please confirm whether your client will now provide the relevant evidence or that his position remains as set out in your email. If your client continues to refuse to provide evidence of his net mitigation earnings then we will invite the Tribunal to reach judgement based on the deduction of your client's gross mitigation earnings (which are evidenced).[23]By an email dated 20 February 2024 the Claimant continued to argue that the grossing up principle should apply in respect of the South Carolina tax income, and disputed the Respondents’ position that his place of residence was simply a matter of personal choice.[24]By an email dated 27 February 2024 the Claimant chased up a substantive response.[25]On 29 February 2024 the Respondents provided an updated spreadsheet. Second remedy
Hearing
[26]The intention of the Tribunal was that this second remedy hearing was supposed only to deal with a short, discrete number of loose ends if the parties were unable to agree them: specifically net pay rather than gross, grossing up and some figures on LTIP/bonus where it was unclear what had been agreed between the parties.[27]The number of points in dispute sadly increased rather than decreased since the first substantive remedy hearing. Neither party appears to have approached the question of evaluating remedy entirely in a spirit of compromise, but rather has on each side taken points which have served to perpetuate the dispute and have failed to put their heads together to present data to the Tribunal in a common format in Excel as ordered. This has led to further delay and has made the task of the Tribunal lengthier and more difficult than it should have been.[28]We are grateful to counsel for agreeing a list of issues for this second remedy hearing which appears as an appendix to this judgment.
Evidence
[29]In addition to the multiple bundles produced at the liability and first remedy hearing noted in the two earlier written reasons, a second supplementary bundle was produced for this hearing, which contained 276 pages. References to documents in that bundle that will appear in this format [SB2/123] where 123 is the page number. - 5 - Submissions[30]We are grateful to counsel for providing detailed written submissions at the second remedy hearing, an authority bundle from each party and oral submissions which were capped at a little under two hours for each party, with a brief right of reply for the Claimant.[31]Further written submissions were supplied by the parties in response to a query from the Tribunal sent on 3 April 2024. We are grateful for the submissions provided by both parties on 22 April 2024. THE LAW Foreign law[32]In Brownlie v FS Cario (Nile Plaza) LLC [2021] UKSC 45 Lord Leggatt wrote: 116 The rationale for applying English law by default, however, depends upon neither party choosing to advance a case that foreign law is applicable. If either party pleads that under the relevant rules of English private international law foreign law is applicable to an obligation, and that case is well founded, it is the duty of the court to apply foreign law. To apply English domestic law in that situation would ex hypothesi be unlawful. In accordance with general principle, the burden is on the party who is making or defending a claim, as the case may be, to prove that it has a legally valid claim or defence. Where the law applicable to the claim or defence is a foreign system of law, this will require the party to show that it has a good claim or defence under that law.[33]Later on in his decision at paragraph 114 Lord Leggatt gave some general guidance on the presumption of similarity: 147. …. the procedural context in which the presumption is relied on matters. Self-evidently, there is more scope for relying on the presumption of similarity at an early stage of proceedings when all that a party needs to show in order to be allowed to pursue a claim or defence is that it has a real prospect of success. By contrast, to rely solely on the presumption to seek to prove a case based on foreign law at trial may be a much more precarious course. 148 I would add that it should not be assumed that the only alternative to relying on the presumption of similarity is necessarily to tender evidence from an expert in the foreign system of law. The old notion that foreign legal materials can only ever be brought before the court as part of the evidence of an expert witness is outdated. Whether the court will require evidence from an expert witness should depend on the nature of the issue and of the relevant foreign law. In an age when so much information is readily available through the internet, there may be no need to consult a foreign lawyer in order to find the text of a relevant - 6 - foreign law. On some occasions the text may require skilled exegesis of a kind which only a lawyer expert in the foreign system of law can provide. But in other cases it may be sufficient to know what the text says.” Grossing up principle[34]“Grossing up” is based on the principle established in the decision of the House of Lords in the case of British Transport Commission v Gourley 1956 AC 185, HL.[35]Taking account of the tax a winning claimant must pay on any award, they should not be in a better or worse financial position than if a dismissal had not taken place. In practical terms this usually requires the Tribunal to estimate the tax that the winning claimant will have to pay on an award of damages and add a sum by way of “grossing up” such that the claimant ends up with a figure after payment of tax which reflects their net loss caused by the dismissal. Grossing up (foreign element)[36]The editors of IDS handbooks on employment law offer the following commentary in chapter 13 of the handbook dealing with Unfair dismissal (13.72): “If one of the parties contends that the tax law of a country other than the UK needs to be considered and applied to the grossing up process, it is crucial that that party takes responsibility for ensuring that the tribunal has the necessary information to enable it to apply the relevant law.”[37]In International Petroleum Ltd v Osipov (UKEAT/0229/16/DAUKEAT/0058/17/DA) – the Tribunal found that Mr Osipov had tax liability to pay both UK tax and US state tax and grossed up for both UK and US state tax.[38]IPL did not pursue on appeal an argument that the Tribunal was wrong to find that the Claimant was liable to pay tax in the UK on the portion of the award made to the Claimant to account for his liability to pay state tax in New Jersey (per paragraph 4 Simler P).[39]In that case, it was argued by IPL that the US-UK tax treaty meant that no US federal tax was owing. In respect of the US state position, the Claimant’s expert stated in a report dated 22 November 2016 as follows (recited by Simler P at paragraph 19): “If, in the year of payment, Mr Osipov is resident for State tax purposes in New Jersey or other of the states of [the] United States he will be subject to the laws of that state. Almost all US states impose an income tax on residents and very few states provide any relief for taxes paid to foreign countries. As a result the likelihood is that the payment will be subject to state taxes in full, subject to confirmation of Mr Osipov’s state of residence, and - 7 - a US state tax gross up is likely to be required (on top of the UK tax gross up).”[40]In that case the respondent employer had not sought their own expert evidence and sought to do so by an application to adjourn the hearing at the last minute. Simler P held:38. … … The Respondents had only themselves to blame for that situation. They could, and should if they wished to do so, have obtained the evidence and information they considered necessary to produce the calculations required by the Tribunal, based on the proper law they contended for, and that would have enabled the Tribunal to determine whether, and to what extent, their arguments made a difference to the calculation of tax likely to be exigible on the award, and to calculate the award in final form.39. … There is a strong public interest in the finality of litigation, and it is well established that this principle applies, even in a case decided on a basis of law that may prove to be wrong. Order of adjustments for compensatory award[41]There is a convenient summary of the order of adjustments for a compensatory award in the Employment Tribunal Remedies Handbook 2024-25 (Benjamin Gray, Bath Publishing): Adjustments to the compensatory award 1) Calculate the total losses suffered by the claimant; 2) Deduct any amounts received from the employer such as payment in lieu of notice or ex gratia payment which made to the employee as compensation for the dismissal (Digital Equipment Co Ltd v Clements [1997] EWCA Civ 289). This must exclude any enhanced redundancy payment above the basic award; 3) Deduct earnings which have mitigated the claimant’s loss or a sum which reflects any failure by the claimant to mitigate his or her loss (s123(4) ERA 1996); 4) A ‘Polkey’ deduction to reflect the chance that the claimant would have been dismissed in any event had the employer acted fairly (Polkey v AE Dayton Services Ltd [1987] IRLR 50 (HL)); 5) Decrease/increase for accelerated/decelerated receipt of compensation in respect of future/past loss (Bentwood Bros - 8 - (Manchester) Ltd v Shepherd [2003] EWCA Civ 380) (see also Accelerated/decelerated receipt); 6) Percentage increase or reduction up to a maximum of 25% to reflect an unreasonable failure by the employer or employee to comply with the ACAS disciplinary code (s207A TULR(C)A) (see ACAS (The Advisory, Conciliation and Arbitration Service)); 7) A percentage reduction, up to a maximum of 25%, if a protected disclosure was not made in good faith (see also Protected disclosure); 8) Any extra award for a failure by the employer to provide written particulars of employment (s38 EA 2002) (see also Written statement of particulars); 9) Percentage reduction for any contributory conduct on the part of the employee (s123(6) ERA 1996). …; 10) Deduction for any enhanced redundancy payment to the extent that it exceeds the basic award (s123(7) ERA 1996); 11) Interest on past losses, if available; 12) Gross up CONCLUSION ON REMEDY FINANCIAL LOSSES (Issue 1) Should C be permitted to pursue a new claim for further relocation costs?[42]This is in effect an application by the Claimant to amend the schedule of loss to add additional relocation costs which the Claimant says were not included in his original Schedule of Loss.[43]The Tribunal found no satisfactory explanation has been put forward why this part of the claim could not have been presented with reasonable diligence before. The substance of remedy has already been dealt with. This second remedy hearing is dealing with loose ends that we were not able to deal with at the previous hearing because of complexity or lack of information on specific points.[44]Considering the timing and manner of this application to amend, we did not find that it was in the interests of justice to entertain an application to amend made so long after matters relating to financial loss ought to have been put before the Respondents and Tribunal.[45]This application is refused. - 9 - (Issue 2) Should the ET reduction factors be applied to certain sums, namely: (a) 2019 AIP (payable in March 2020);[46]Paragraph 2 of the judgment dated 22 December 2022 applied a 10% discount across the whole compensatory award for loss of earnings to reflect the possibility that employment might have come to an end for a non-discriminatory reason. The explanation for that discount was provided at paragraphs 146 – 155 of our written reasons for the first decision or remedy.[47]The Claimant invites us not to apply that 10% reduction to an AIP bonus for 2019, payable in March 2020 on the basis that he would certainly have received this.[48]We accept the Respondents’ arguments on this point. The 10% discount was necessarily on a broadbrush basis. Although there might be arguments either way on this point, our finding is that we already have and should apply this to this bonus income received in March 2020. Any other approach will simply be unpicking the broadbrush approach applied in our decision of December 2022 which has not been challenged by either party.[49]The 10% discount will apply to this item. (b) certain LTIP awards (vesting annually from mid-March 2020);[50]For similar reasons to those given above, the relevant reduction factors decided upon by the Tribunal should be applied to this item. Again this is in the interests of certainty. It would not be in the interests of justice to unpick the broadbrush discount.[51]The 10% discount will apply to this item. (c) Travel allowance?[52]For similar reasons the relevant reduction factors decided upon by the Tribunal should be applied to the travel allowance. The travel allowance would only have been paid if the Claimant was still in employment. We have found that there was a percentage chance of him remaining in employment but less than 100%. Accordingly the deduction should be made.[53]To reiterate we are not going to unpick the broadbrush nature of the deduction exercise for some items not others. No doubt specific arguments could be made for different items but in a claim of this size with a number of heads of claim items claimed it would take what is already a complex exercise and a complex calculation and make it unmanageable. There must be finality.[54]The 10% discount will apply to this item. - 10 - (Issue 3) Should some of the LTIP figures (for later years' awards) be recalculated to allow for adjustment from the figures provided and relied upon at the Remedy Hearing in order to incorporate actual performance percentage achievement figures?[55]The submission put forward on behalf of the Claimant at the second remedy hearing was that LTIP figures could be derived using a ratio between different figures contained in a schedule of figures annexed to Ms Belgrove’s submissions made on behalf of the Respondents at the first remedy hearing.[56]The Respondents’ position was twofold. First that LTIP figures had been substantially agreed between the parties in the run-up to the first remedy hearing, and the Claimant was seeking to re-argue what had already been agreed. Second, the Claimant’s position on valuation was simply wrong and ignored the actual basis that LTIP should be calculated using which related to the share price. The basis for calculation was set out at paragraph 15.5 of Ms Belgrove’s submissions document dated 14 October 2022 and incorporated in the Respondents’ spreadsheet calculation in an explanatory table in cells E77- J82.[57]What was agreed? The Tribunal has considered what it was that had been agreed and not agreed in relation to LTIP at the first remedy hearing. In the December 2022 reasons, in the section paragraph 182 – 185 we noted points that had been agreed (periods 1 and 2). We noted that the Claimant had conceded the point about pro-rating. Finally we noted that emails of 12 and 14 December 2022 between the parties had led to a lack of clarity about what had been agreed.[58]Where there has been any agreement between the parties in the previous schedules, this Tribunal will not allow the parties to depart from that agreement. No good or coherent reason was advanced for resiling from earlier agreed points. This can only prejudice the Respondents and cause further delay making a complex task even less manageable.[59]The Tribunal had no hesitation in accepting the Respondents’ submissions on calculation of LTIP which were clear and corresponded to the evidence. We were persuaded that LTIP was calculated by reference to the share price. We accept the Respondents’ figures in relation to this head of claim. The Respondents’ approach contains a methodology which is consistent with the figures for LTIP in the period that the Claimant had previously agreed. (Issue 4) Should the 4% dividend figure be 4% per annum or that figure compounded?[60]The Claimant invites the Tribunal to calculate dividend income on the basis of 4% compounded interest rather than simple interest.[61]The Tribunal has already made a decision that the appropriate dividend figure should be 4% per annum. We did not decide that that should be compounded. We are not prepared to make a reopen this point in the Claimant’s favour to compound the dividend figure. - 11 - (Issue 5) Is C entitled to an AIP award for the first four months of 2024?[62]The Tribunal found that in a number of scenarios for a planned retirement the Claimant would working to the end of April of a particular year in order to ensure payment of his bonus for the previous year. It does not follow that he would then get one third of the bonus that would ordinarily be paid the next year. We bear in mind based on industrial experience that an important element of an employer’s motivation in operating a bonus scheme is to encourage retention. It is frequently the case that employees wish to stay in employment to the point when bonus entitlement has crystallised. Our finding is that the Claimant would have worked to April 2024 in order to receive his full bonus paid then for the year 2023.[63]There is no finding of fact that we have made that supports the Claimant’s argument that he should receive a bonus for a third of 2024, nor having considered it do we think it was likely that in any scenario he would have been paid a third of a bonus.[64]Our decision is that the Claimant is not entitled to receive an award for the first four months of 2024. (Issue 6) Should the discount for accelerated receipt be referable to the date set down in the Remedy Judgment or to a new date?[65]The original judgment was for a 5% deduction for accelerated receipt of future losses. At that time in December 2022 some losses stretched as far into the future as far as March 2024.[66]The Claimant made a reconsideration application on this point by email on 19 January 2023. Employment Judge Adkin wrote on 21 June 2023 to say that he could not conclude that there was no reasonable prospect of success pursuant to the procedure under rule 72(1) of the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 ("the Rules"). It followed that this application would be dealt with at the second remedy hearing.[67]The Respondents say that the Claimant’s non-compliance with the Tribunal’s order caused delay, and that the Claimant ought not to profit from that by having the deduction for accelerated receipt varied.[68]The Claimant does not accept that his non-compliance is the substantial cause of delay given his ill health and delay caused by the Respondents during the course of 2023 but in any event says that the Respondents have been sitting on the money, or in other words the Claimant has been kept out of his money and ought not to give credit for accelerated receipt, since by the time he receives payment, none of the payment will reflect future loss.[69]As to causes of the delay, there were multiple causes of delay. There was an administrative delay on the part of the Tribunal in promulgating the decision which can only have made compliance more difficult, since the original four - 12 - week period given for compliance with the first order was contracted to 8 days. It is a matter of fact that the Claimant did not comply with the order. Thereafter the Claimant was very ill. It seems realistic based on medical evidence we have seen that he was prejudiced in his ability to deal with the claim for at least three months.[70]The Respondents asked for further disclosure e.g. in relation to the Claimant’s tax payments in South Carolina.[71]The Respondents did not engage with the exercise of trying to produce a jointly submitted Excel spreadsheet. They took their own approach to this. Plainly of course the Respondents could not have produced a jointly submitted spreadsheet in compliance with the case management order made in December 2022 since by 22 February 2023 no progress was being made due to the Claimant’s state of health.[72]Each party is pointing the finger at the other as a cause of delay. It seems to the Tribunal it is difficult to identify either side as being more fault than the other. There has been some fault and lack of compliance on both sides. Additionally, some substantial causes of delay in this case fall outside of the control of either side.[73]We have come to the conclusion that whether one side or the other in this litigation is at fault in the delay in this case does not particularly help us. There is fault on both sides. There are additionally extraneous factors which caused delay.[74]The decision as to whether to vary an earlier decision is “in the interests of justice”. There are some competing factors here. Finality in litigation is highly desirable. That would operate in the Respondents’ favour, suggesting that matters already decided by the Tribunal should not be reopened. Indeed that principle has operated in the Respondents’ favour on other items considered above.[75]On the other hand the reason for making a discount for accelerated receipt is that the receiving party is able to invest money they have received in compensation earlier than they would have received it had there been no unlawful conduct. In this case the Claimant will not receive any monies on an accelerated basis. By the time he receives any money from the Respondents it will be after the point at which he would have received it as part of his remuneration in the ordinary course. In these circumstances a discount for accelerated receipt would be a windfall to the Respondents. They will have the benefit of a discount even though they have held onto the money and the Claimant has not had the benefit of receiving the money early.[76]Does the prejudice to the Claimant in having a discount for accelerated receipt when in fact there has been no accelerated receipt outweigh the prejudice to the Respondents in having this point reconsidered?[77]There was no decided figure for future loss. That still required the input from the parties and further deliberation at this second remedy hearing. In other - 13 - words future loss had not been finalised. We find that the prejudice to the Claimant does outweigh that to the Respondents.[78]On balance we find that the interests of justice dictate that we ought to vary the 5%.
THE LAW
[79]We will reflect the lack of actual accelerated receipt by varying our decision dated 22 December 2022 to remove the application of a 5% discount for accelerated receipt of future losses. There will be no such discount. (Issue 7) Should interest run to the date of assessment set down in the Remedy Judgment or to a new date?[80]The Respondents argue that a date of assessment has been defined in our December 2022 judgment and that this ought not to be varied.[81]The figure for interest on the award for injury to feeling has been assessed. That award was certain, the assessment took place on 22 December 2022. We have decided that that figure should remain as in the December 2022 judgment. The date of assessment for that figure was 21 December 2022. We accept the Respondents submission in relation to the date of assessment for the injury to feeling award. That date of assessment should not be varied.[82]As to interest on financial losses contained within the compensatory award, regulation 4(1) of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 defines the “day of calculation” as the day on which the amount of interest is calculated by the Tribunal. For those financial losses that calculation has not been made until this second remedy judgment and reasons.[83]The broad principle behind the award of interest is to provide compensation to a successful claimant for the loss they have suffered by virtue of not having received payment of the award at the date of the loss suffered. The Claimant has not yet received payment.[84]In those circumstances the period for which interest will be calculated is the midpoint between the date of discrimination i.e. 1 August 2019 and the date of assessment which will be 19 June 2024. The total period is 1,784 days. The mid point is 9 January 2022. The number days between the mid-point and the date of assessment is 892 days. (Issue 8) What is C’s net pay in respect of mitigation earnings? Specifically, should he give credit for tax rebates?[85]The Claimant has received various rebates from the tax authorities in respect of both federal and state income taxes in the US. There is a dispute between the parties as to which parts of these rebates should be credited as mitigation income and therefore deducted from the net income that the Claimant would have received had he not been dismissed. - 14 -[86]It is not in dispute that rebates relating to salaried income earned by the Claimant subsequent to his dismissal ought to be credited in this way. That is plainly right.
CONCLUSIONS
[87]The dispute relates to rebates which the Claimant says are for unrelated matters. The Claimant says that these are tax rebates relating to his financial affairs other than his salaried income. The implication of the Claimant’s position is that these are tax rebates which he would have received whether or not his employment with the Respondent came to an end, and ought therefore to be ignored. The Claimant’s figure for net income earned in mitigation is £330,639.[88]The Respondents’ position is the Claimant is overstating the amount of tax he needed to pay in relation to his income once the rebates are taken into account. They also argue that there has been a failure of disclosure. They say that they have repeatedly requested the detail and evidence of those tax payments and that the Claimant has not provided the tax evidence requested. The Respondents highlight that only the Claimant has access to this information. The Respondents’ (corrected) figure for mitigation is £425,567. Evolution of the parties’ positions on tax & mitigation[89]It is not necessary or helpful to attempt to capture the entire history of the parties’ positions on this point, but some key points below give a flavour of the way that the disputed point has evolved: 89.1. In an updated schedule of loss dated 23 February 2022 only gross salary figures for sums received in mitigation were given. 89.2. In the Claimant’s Reply to Respondent’s Counter Schedule dated 5 May 2022 the Claimant again gave figures gross in a mixture of US dollars and pounds Sterling. 89.3. By an email of 25 September 2023 [SB2/203-6] the Claimant provided his earnings statement from Imerys Minerals USA, Inc and a summary spreadsheet providing a breakdown of salary, auto allowance, bonus, federal income tax, Medicare tax, Medicare surtax, GA [Georgia] State Income Tax, Social Security Tax for the half year June – December 2021; and the whole years January to December 2022 and 2023 [SB2/207]. This converted figures given in US dollars to British Pounds using a conversion exchange rate of 1.2. 89.4. In correspondence on 16 November 2023 the Respondents raised the concern of its accountants that tax calculation for mitigation amounts provided by the Claimant based on payroll data would be likely to overstate the amount of tax he needed to pay. 89.5. In an email dated 20 December 2023 Mr Daniels on behalf of the Claimant provided the following detail on the Claimant’s actual US tax payments [SB2/250]: - 15 - “The Claimant’s tax calculations in USA are complex as it involves property tax, short term investment gains, long term investment gains, losses on investments, Tax on dividend income, Mortgage relief etc. We are instructed these figures are correct” 89.6. By an email dated 30 January 2024 Ms Penny for the Respondents raised a concern that if only payroll data was relied upon the actual tax deductions would not be properly reflected and asserted that the disclosure obligations applied regardless of whether that involved the disclosure of personal data or not. 89.7. By an email dated 9 February 2024 Ms Penny for the Respondents set out that although the situation was complex there was no need for expert evidence and raised a concern that the absence of accurate net calculations led to a risk of an award being greater or lesser than what the Claimant has been awarded in principle. This was answered by Daniels on 20 February 2024. In short his position was that the claimant need not disclose his tax arrangements which did not relate to loss caused by the Respondent and the question of mitigation. The spreadsheets provided post-hearing[90]At the second remedy hearing on 13 March 2024 the Tribunal requested that the parties provide their excel spreadsheet calculations.[91]Although this this did not represent compliance with the early order since there was not a set of calculations in a single spreadsheet, this at least enabled the Tribunal to see how figures have been calculated by examining the spreadsheets.[92]Following that request: 92.1. The Claimant provided his Master Spreadsheet on 14 March 2024 sent at 8:54. This was apparently an updated version of the one originally provided to the Respondents on 31 August 2023 [SB2/199]. 92.2. In the Respondents’ first calculation spreadsheet dated 14 March 2024 sent at 11:55, it was suggested that the total received by the claimant in gross mitigation was £566,202, assumed to be equivalent to a net £169,861. A tax rebate figure of £29,226 was deducted to give a figure of net income received in mitigation of £219,087. 92.3. In the covering email the Respondents’ solicitor highlighted that the Claimant had stated that his gross Imerys mitigation for June to December 2021 was £117,300; in the spreadsheet produced that morning that number had reduced to £112,788, without explanation. (Dealing with that point of dispute, the Tribunal has checked the calculations originally provided on SB2/207 for the half year 2021 and these do correspond to the US dollar figures on the earnings statement on SB/204 and to a conversion to pounds at a rate of £/$ of 1.2. In other words the Claimant’s “corrected” figure £112,788 figure appears to be correct). - 16 - 92.4. The Respondents’ corrected their calculation in an updated calculation dated also sent on 14 March (at 16:42) (also consistent with the very last version of the Respondents’ figures provided on 22 April 2024). It was admitted that the earlier figure contained an error of calculation and suggested that the total received by the claimant in gross mitigation was £566,202, equivalent to £396,341 net income (30% tax assumed). A tax rebate figure of £29,226 was added to give a figure of net income received in mitigation of £425,567. This represented a very significant change in the Respondents figure of over £200,000.[93]The very last word from the Claimant was by email from Mr Daniels sent at 07:46 on 15 March 2024 attaching a spreadsheet dated “Copy of 14 March mitigation Claimant explanation Keystone 735am FINAL.xlsx”. That spreadsheet summarised the two most recent positions of the Respondents described above and provided the Claimant figures, which seem to be substantially derived from SB2/207 the calculations referred to above and the payslip data which appears at SB2/204-6. The Claimant gave alternative figures of £536,712 gross, from which it was said that actual tax of £205,805 was deducted. Taking account of a rebate of £4,038, but less a tax underpayment requiring payment of £3,770 meant that there was credit given for a sum of £268, leading to a total net mitigation sum of £330,639. Evidence on rebates[94]Considering the evidence we have been provided with: 94.1. A letter from accountants dated 17 May 2021 [SB2/257] the Claimant and his wife were due to receive refunds for tax year 2020: $294 in relation to federal taxes and $28,854 in relation to Ohio state taxes. 94.2. A letter from accountants dated 14 April 2022 [SB2/259] the Claimant and his wife were due to receive refunds for tax year 2021: $4,167 in relation to federal taxes and $678 in relation to Georgia state taxes. A payment of $882 was to be deducted in respect of South Carolina state taxes. 94.3. A letter from accountants dated 8 May 2023 [SB2/262] the Claimant and his wife were due to receive refunds for tax year 2022: $432 in relation to federal taxes and $644 in relation to Georgia state taxes. A payment of $3,090 was to be deducted in respect of South Carolina state taxes. Conclusion re: rebates[95]The fact that this correspondence is addressed to both Mr and Mrs Cowie does in our assessment support the Claimant’s position that the information given about tax rebates or tax overpayment relate to matters broader than simply his personal salaried income working for Imerys. The Claimant says that this reflects property tax, short term investment gains, long term investment gains, losses on investments, Tax on dividend income and Mortgage relief. The Tribunal accepts this. - 17 -[96]The Respondents equivalent calculations assume that the Claimant paid 30% tax. While that might have been a reasonable working assumption, based on the Claimant’s earlier estimate, by the time of the hearing in March 2024 we had benefit of some actual tax payment figure. On the Claimant’s figures the total tax he paid of £205,805 is 38% of the £536,712 total he earned in total during the period in tax years 2021/22 through to 2024/25. It follows that an assumption of paying only 30% tax as per the Respondents’ suggestion materially understates, we find, the Claimant’s actual tax burden, which overstates the net income he has received since termination and correspondingly understates his overall loss of net income.[97]We are satisfied, based on the evidence of the Claimant’s earnings statements and the correspondence from his accountants 17 May 2021, 14 April 2022 and 8 May 2023 [SB2/257-263] that the Claimant has proven his loss in respect of the mitigation calculations. The relatively small figures put forward in the correspondence from the accountants in relation to rebates leads us to the conclusion that the figures put forward by the Claimant do not materially misstate the extent of his loss.[98]Accordingly we have used the Claimant’s figures in relation to the mitigation of loss figures received net of tax. (Issue 9) How should C’s award be grossed up (the South Carolina issue)? Tribunal’s reasons at liability stage on grossing up[99]For ease of reference the Tribunal’s earlier reasons were:258. “Grossing up” is an increase applied to an award of compensation by the Tribunal to ensure that a claimant is compensated for the true net loss. It should be calculated to take account of the elements of the compensation that will be taxed.259. Mr Cowie and his advisors are better placed than the Tribunal to calculate the tax that will need to be paid on this award, since it may depend on other income outside of our knowledge and in which jurisdiction or jurisdictions he will be paying tax. Dispute[100]It is not in dispute between the parties that grossing up to reflect the deductions which will be made to the judgment sum should be made to reflect the sums it is anticipated will be deducted by the UK tax authorities from the sum awarded by the Tribunal. The dispute is whether the Claimant’s award be grossed up for South Carolina state income tax. - 18 - Submissions[101]Some of the key points in the parties submissions are highlighted below. The core of the submissions from each side are in writing and the detail of those submissions can be referred to if necessary.[102]Following on from Tribunal deliberation on 28 March 2024 after the second remedy hearing Employment Judge Adkin asked the parties to offer submissions in writing on whether the decision of Simler P sitting in the case Osipov v International Petroleum (UKAT/0229/16/DA, UKEAT/0058/17/DA – addendum dealing with tax) might offer the Tribunal assistance in the present case. Written submissions were received from both parties, for which the Tribunal is grateful. Claimant’s case[103]The Claimant’s case is that he is now resident in the state of South Carolina. He says that he will not pay US federal tax, due to the agreement between the USA and UK in relation to income tax (usually called the UK/US Double Tax Convention), but that he will have to pay a state tax of 6.4% (corrected by the Claimant from an earlier figure of 6.5%).[104]The first time the South Carolina element was claimed for was in a cell in in an excel spreadsheet provided by the Claimant to the Respondent on 21 July 2023 as £207,228 based on a rate of 6.5% [SB2/193]. That figure was also included in a spreadsheet sent to the Respondents on 31 August 2023 [S2/198]. The covering email contained the following request: “Please state any disagreements of principle (or of fact) in your cover letter in reply in a way that is readily understood by ourselves and our client (or indicate with clearly indicated notes on the document any disputed elements with some explanation).[105]By a letter of 16 November 2023 the Respondent said on this point: “6. South Carolina Tax Where the Claimant is now located is a matter of personal choice. The Respondents are obliged to account for UK tax on the award; they are not liable for any additional tax the Claimant is subject to because he has elected to be resident in a different tax jurisdiction – had his employment with the First Respondent continued he would certainly have been employed in the UK.” Accountant’s advice re South Carolina income tax[106]In a letter of 16 February 2024, the Claimant’s accountant William E Joseph, wrote to him as follows: - 19 - “This letter is in response to your request for information. As you know from working with our firm, I am a Certified Public Accountant who prepares Federal, State and local income tax returns. I have been licensed in the State of Ohio since 1993 and our practice covers income taxes in all 50 states. The purpose of this letter is to provide you with calculations of the estimated income taxes owed on your UK settlement income assuming a settlement is received during calendar year 2023. I understand that you will likely share this letter with your legal counsel as well as the UK tribunal that you have indicated is handling your case. Please keep in mind that you are our client, and no other client relationship or responsibility is created on our behalf with those that you chose to share this letter with. As you already are aware, as a resident of the United States and of the State of South Carolina, you must file and pay your income taxes annually based on calendar year worldwide income. Taxable Income From the information that you provided, we would expect that all settlement related payments that you are to receive, including, interest and awards for injury to feelings to be subject to both US Federal income tax and South Carolina state income tax. Based on your gross settlement of approximately $4,162,800, you will have income taxed at all the marginal brackets from 10% to 37% (see the brackets in the chart overleaf). [chart entitled Tax brackets 2023 for taxes filed in 2025 omitted for present purposes] South Carolina Income Taxes The State of South Carolina collects income tax using the Federal taxable income number from the US income tax form. There are no allowances or deductions available in South Carolina. In addition, there is no credit for foreign taxes paid, only for income taxes paid to other states which does not apply since no state taxes will have been paid on this income at the source. The maximum income tax rate for SC is 6.4% for 2024. Using a conversion rate of 1.2 we estimate South Carolina State income tax due on the UK compensation payment in 2024 to be approximately $263,800. The information presented above in this letter is provided to the best of my knowledge. - 20 -[107]In line with the letter from the accountant Mr Joseph, the Claimant accepts that the relevant figure for South Carolina state income tax is 6.4% rather than 6.5% as had previously been claimed.[108]Mr Susskind for the Claimant has developed points in written and oral submissions. Among those arguments are: 108.1. The Gourley principle is not disapplied because of where a claimant is domiciled. The Tribunal should not ignore that the Claimant lives in South Carolina or pretend for the purposes of grossing up that he lives in the UK. 108.2. The argument that the decision that the Claimant “elected” through personal choice to live in South Carolina should not stand given the Tribunal’s finding was that he had found a job there to mitigate his loss i.e. this was a consequence of discrimination and tortious damages should apply. 108.3. The Respondents have not disputed and indeed benefited from the South Carolina tax regime in part when it comes to credit being given for income mitigation, but are refusing to recognise that the Claimant has a tax liability in South Carolina when it comes to the question of grossing up. 108.4. Res judicata applies. The Tribunal at paragraph 258-9 of the written reasons on liability has already decided that tax will need to be paid which may depend on which jurisdiction or jurisdictions (plural) he will be paying tax. 108.5. As to the Respondents’ reliance on the case of Brownlie v FS Cairo (Nile Plaza) LLC [2022] AC 995, Mr Susskind points out the content of paragraph 148 of Lord Leggatt’s decision, in which acknowledges that there is much information suggests that the need for expert witness may be outdated.[109]As to the Osipov case, the Claimant argues that a broad proposition to be derived from that decision is that parties should not benefit from their own lack of cooperation in the process of evidence gathering or “ambushing” the other side, which it is submitted the Respondents’ position on this point is. Respondent’s arguments re: grossing up[110]The Respondents’ arguments are summarised succinctly in Ms Belgrove’s written submission. These may be summarised as follows: 110.1. The Claimant’s decision to relocate to South Carolina is one of personal choice, the cost of which the Respondents should not pay. 110.2. If Claimant is correct in pursuing this claim, it would be necessary for the ET to determine and apply foreign law, specifically tax treatment of foreign judgment awards in South Carolina. - 21 - 110.3. In the decision of the Supreme Court in Brownlie, Lord Leggatt confirmed that the default rule is that English law is applicable in its own right where foreign law is not pleaded and that there is a presumption of similarity between foreign law and English law when foreign law is not proven. In this case, the “default rule” applies. The Claimant has not pleaded that the ET should apply the law of the United States nor the law of South Carolina. In those circumstances, English law is treated as applicable in its own right where foreign law is not pleaded. Accordingly, the ET must apply only English law in respect of grossing up. 110.4. Further and alternatively, the “presumption of similarity” applies; where the Claimant has not adduced evidence to prove the law of South Carolina, it is presumed to be the same as English law. 110.5. In order for the ET to determine and apply foreign law, it would require expert evidence in respect of the legal position on the tax treatment of foreign judgment awards in South Carolina in order to gross up the Claimant’s net award correctly. In the absence of expert evidence, the ET cannot determine and apply foreign law. It would be impossible for the ET to determine how an award made by a foreign tribunal or court would be treated, for taxation purposes, in South Carolina. 110.6. The burden rests with the Claimant and he has not discharged that burden. He has not provided expert evidence to the Respondents nor sought, at any time, permission to rely on expert evidence.[111]As to the Osipov case, the Respondents argue that it highlights the importance of expert evidence where a party is seeking to rely on foreign law, which is significant given that there is no independent expert in the present case. Conclusion on grossing up for South Carolina tax[112]Our conclusion is that grossing up should include an element for the tax that the Claimant will pay in South Carolina for the following reasons.[113]It was clear to the Tribunal and parties back in December 2022, the date of the liability decision that more than one tax jurisdiction might play into the grossing up calculation, as reflected in paragraphs 258-9 of the written reasons. It should have been clear to both parties that the Tribunal had in contemplation that potentially more than one jurisdiction was going to be engaged, given the context of the case which the Claimant was formerly resident in the UK and now resident in the US. It seems to us that the suggestion made now by the Respondents that the Claimant being resident in South Carolina is purely a matter of personal choice runs counter to our finding at paragraph 238 of our written reasons in the first remedy decision that the Claimant relocated back to the USA to mitigate his losses. We accept the Claimant’s position that this relocation is one of the consequences of the discriminatory dismissal.[114]The approach of Respondents is to take a strict pleadings point on US law and also expert evidence. There are several reasons why we have concluded that this is not a desirable approach. - 22 -[115]First, we bear in mind Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 ("the Rules") rule 2 and the overriding objective to deal with cases informally and flexibly, which are not principles which taken apply to cases like Brownlie. We have derived some assistance from the acknowledgement in Lord Leggett’s decision that expert witness evidence is not needed in every case.[116]Second, the exercise facing the Tribunal is principally one of fact, i.e. how much tax is the Claimant going to pay on the judgment sum in South Carolina? To the extent that this contains a question of law, this is distinct and less complex than the question of whether liability would be established for a claim in tort which needed to be established under the Egyptian law (to use the example from Brownlie).[117]Third, the point about multiple jurisdictions was highlighted in the Tribunal’s written reasons. From the context the parties could only have understood that this was UK and US. In other words the parties have been on notice for over a year that this was going to be a question to consider.[118]The Claimant left it relatively late to get a letter from his accountant. The Respondents have done nothing at all in respect establishing the tax position when they were on notice that the Claimant was seeking to gross up for South Carolina state tax from the Claimant’s correspondence of 21 July 2023. The Claimant expressly request that any disagreement of principle be raised in the Claimant’s further correspondence of 31 August 2023.[119]Fourth, we have a statement from the Claimant’s accountant which gives a coherent and plausible explanation of the appropriate tax treatment i.e. the Claimant will have no federal tax liability, but he will have a liability to pay South Carolina tax. This is not an independent expert appointed by a Tribunal. It appears to this Tribunal to be the statement of a professional doing his best to set out the tax situation as he understands it. Following Lord Leggatt’s guidance, we take the view that court appointed expert witness is not necessary in every case. We do not find that expert evidence is necessary in this case.[120]A letter from an accountant is in our view evidence of the tax position. Is there a reason to doubt it? We note in passing that the position set out by Mr Cowie’s accountant is essentially similar to the expert evidence quoted in the Osipov case i.e. that there is an exemption from US federal tax where UK tax is paid, but no such exemption applies in the case of US state income tax. Plainly it would be wrong to place any weight on expert evidence given in different circumstances. Looking at the matter in the round, however we do not have any good reason to seriously question that the Claimant’s accountant’s view is correct.
REMEDY
[121]Fifth, the Respondents have not sought to provide their own expert evidence, nor have they put forward any evidence nor indeed advanced any good argument that the Claimant’s accountant is wrong. Essentially the Respondents are relying on a technical pleadings point, not seeking to argue that the Claimant’s accountant is mistaken. - 23 -[122]Sixth, the strong public interest of finality in litigation is clear and obvious, and particularly in this case when matters have dragged on to such an extent. We bear in mind the guidance of Simler P that the desirability of finality may mean a decision should be taken when the basis of law may be wrong.[123]Based on the evidence we have received, we find on the balance of probabilities that the Claimant will have to pay state tax in South Carolina once he is in receipt of damages from the Respondents pursuant to the Tribunal’s award. We note that the Respondents accept that the Claimant is paying tax in the US under other heads of claim. Indeed they rely on tax rebates in the US as increasing sums received in mitigation which thereby reduced the net loss of income. In our view there would be an element of unreality to ignore the tax liability and the risk of doing injustice to the Claimant. In short if we did not gross up we find on balance of probabilities that the Claimant would have to pay part of his damages to the state of South Carolina, and would be undercompensated for his loss of earnings.[124]In conclusion therefore we find that the compensatory award should be grossed up to take account of state income tax in South Carolina. (Issue 10) What is the correct basis for netting down and subsequent grossing up calculations?[125]The approach that the Employment Tribunal has applied is to consider the loss of net income by deducting net income actually received from net income that the Claimant would have received. To that differential grossing up is carried out as discussed above. (Issue 11) Whether the award for injury to feelings should be grossed up to account for tax that will be levied on it? (C says that it should be grossed up.)[126]Section 406 Income Tax (Earnings & Pensions) Act 2003 has been amended such that for terminations after 6 April 2018, compensation for injury to feelings in a termination payment is taxable to the extent that the £30,000 ‘allowance’ has been exceeded.[127]The EAT confirmed in Slade v Biggs [2021] EA-2019-000687 that the wording of the amended section 406 is broad and includes injury to feelings in consequence of dismissal or “in connection with” termination.[128]Given that the termination in this case was after 6 April 2018 and the injury to feeling award was in connection with termination, the injury to feeling award will be taxed insofar as it goes above the £30,000 allowance.[129]Given this grossing up will apply to this award. The sum for injury to feeling and interest thereon has been added into the figures for the grossing up exercise then deducted at the end, since judgment for these sums was given in the December 2022 judgment. - 24 - (Issue 12) Whether C is entitled to be compensated for a pro rata travel allowance for 2024? (C says that he should be so compensated.)[130]The Claimant argues for a pro rata travel allowance for part of 2024 until 20 April 2024 (i.e. 4 months).[131]The Respondent argues that this is a new claim and that it is too late.[132]In the December 2022 remedy judgment at paragraph 194 the Tribunal awarded £6,400 p.a. for the remainder of Mr Cowie’s employment. We found that there was a 57.375% percentage chance that he would have continued working until a retirement date of 30 April 2024.[133]Accordingly, we do not find that this was a new claim, it is simply one that has not yet been quantified.[134]Notwithstanding the position of the Respondents that this should not be recovered, the Respondents’ calculations cell B115 has £6,400 for travel allowance for the tax year 2023 – 2024. We presume that this reflects a travel allowance for the period April 2023 – March 2024.[135]It seems therefore that the only element not captured in the Respondents’ calculations is for the month of April 2024. By our calculation the relevant figure is 57.375% (factoring) x 1/12 (one month only) x £6,400 x 0.8 (basic tax deduction), which is £244.80. Rather than attempting to insert this into the Respondents’ calculations of net income we have added this at the end at Table 1. (Issue 13) Whether certain awards for the 2019/20 year should be awarded gross or net of tax (specifically, Sale of US home, Cleveland Airfare, Second Shipping container, and Taxi)? C says that these should be awarded gross.[136]The following items are claimed as part of the Claimant’s claim for financial losses due to his discriminatory dismissal: sale of US home, Cleveland Airfare, second shipping container, and taxi.[137]These items are the recovery of expenses rather than income from which income tax would ordinarily be deducted. These sums should be awarded gross rather than net of tax. Calculations of compensation[138]Our judgment dated 22 December 2022 has already dealt with injury to feeling, interest on injury to feeling and the basic award.[139]We have shown the basis of the calculation for the compensatory award in three tables: - 25 - 139.1. Table 1 Summary Calculation of Compensation – This gives the Grand Total which is the sum that the Fourth Respondent must pay to the Claimant. 139.2. Table 2 Net loss after mitigation – this shows the Claimant’s net loss of income taking account of mitigation income, factoring in the discounts for the four different periods described at paragraph (4) of our judgement dated 22 December 2022 (further explained at paragraph 171 of the December 2022 written reasons. 139.3. Table 3 Grossing up – this grosses up for income tax in the UK and South Carolina. Loss of net income (Table 2)[140]The Tribunal unanimously decided that we should adopt the Respondents’ calculation of the various income figures on the basis that the Excel spreadsheet provided by the Respondents was better laid out and structured made it easier to follow the relevant calculations. We have accepted the Respondents’ LTIP figures for the reasons given above.[141]We have modified the Respondents’ calculations to take account of the decision of the Court of Appeal in Wheeler.[142]This culminates in table 2 (net loss after litigation), which is forms the top line of table 1 (summary calculation of compensation).[143]The columns in table 2 are derived as follows: 143.1. First column, “Net loss” comes from the Respondents’ net loss figures reflecting income but for dismissal net of tax, totalling £1,797,456 (cells D25-D149 of the Respondents’ calculations spreadsheet); 143.2. Second column “net mitigation” comes from the Claimant’ net mitigation figures, totalling £330,639 (see cells H25-H31 of the Claimants’ calculations). Where the four periods breaks over different tax years, the Tribunal has allocated the Claimant’s mitigation figures net of tax pro rata, assuming that the income was earned uniformly over the year (details in the note); 143.3. Third column “Difference” is the arithmetic difference between the first and second columns. The total is £1,466,817, but this is before factoring has been applied; 143.4. Fourth column “% factor” is based on the Tribunals’ percentage factoring, summarised by the Respondents’ (Respondents’ cells C152- 161); 143.5. Fifth column “Total after ET factoring for each period” = third column x fourth column organised by periods corresponding to the four periods in the December 2022 decision broken over the six tax years (2019/20 – - 26 - 2024/25). There are nine different figures, which reflects the fact that the four periods and six tax years do not perfectly coincide. The total is £1,074,834, this is after factoring has been applied; 143.6. Sixth column “Total after ET factoring for each tax year” takes the data from the fifth column and summarises into the six tax years. The total is also £1,074,834. Wheeler[144]We accept the Claimant’s submission that following the decision of the Court of Appeal in Ministry of Defence v Wheeler [1998] IRLR 23, the Tribunal should deduct net sums earned in mitigation of loss (new job) from net income that the Claimant would have earned (old job) to give us a net loss figure first, before applying a percentage reduction to reflect possibility of a nondiscriminatory dismissal.[145]For ease of calculation, using the Respondent’s spreadsheet calculation we have applied the percentage reduction to the mitigation income earned in the relevant tax years as follows: 145.1. tax year 2019/20 – not applicable (no income); 145.2. tax year 2020/21 – not applicable (no income); 145.3. tax year 2021/22 – 0.765 the discount factor for period 2 (within May 2020 – December 2022); 145.4. tax year 2022/23 – 0.765 the discount factor for period 3 (within January 2023 – April 2023); 145.5. tax year 2023/24 – 0.590 the discount factor representing a blended average of one month at 0.765 for period 3 (April 2023 only) and 11 months at 0.574 for period 4 (May 2023-March 2024); 145.6. tax year 2024/2025 – 0.574 (April 2024, i.e. tail end of period 4). Grossing up (Table 3)[146]Using the loss of net income figure derived from the Respondents’ calculations we have used a version of the grossing up section from the Claimant’s spreadsheet since this was clear and provided a method of grossing up for both UK and South Carolina state income taxes. The Respondents’ calculations did not provide calculations for the South Carolina state income tax element of grossing up. This is summarised in table 3. - 27 -