Ms S Daud v London North Eastern Railway Ltd: 2208264/2022

EMPLOYMENT TRIBUNALS

Case No 2208264/2022

Between

Ms S DaudClaimant

London North Eastern Railway LtdRespondent

Before

Employment Judge Mr M Emery

Mr P Powlesland (instructed by counsel) for claimant

Mr A Leonhardt (instructed by counsel) for respondent

Date 1 September 2023

JUDGMENT

BETWEEN CLAIMANT RESPONDENT MS S DAUD V LONDON NORTH EASTERN RAILWAY LIMITED HELD AT: LONDON CENTRAL ON: 7 JULY 2023 (BY VIDEO) EMPLOYMENT JUDGE: MR M EMERY REPRESENTATION: For the claimant: Mr P Powlesland (counsel) For the respondent: Mr A Leonhardt (counsel) REVISED REMEDY JUDGMENT The respondent, having failed to reinstate the claimant, shall pay the following sums to the claimant Basic award: £15,417 Compensatory award: £38,432,36 Addiational award: £25,124 Total: Claimant’s gross weekly salary: Calcauation: Basic award The form ET1 states the Claimant’s date of birth as 1 December 1958. The Respondent recognises that the Claimant’s period of continuous employment was 20 years. Both parties agree that the EDT was 19 July 2022. For the purposes of the basic award, a weeks’ pay is capped at £571. 10. The basic award calculation is 30 weeks’ pay. 30 x £571 = £17,130. 11. In its liability judgment, the Employment Tribunal assessed the Claimant’s contributory fault at 10%. £17,130 x 90% = £15,417. 12. The Claimant’s basic award is therefore calculated at £15,417. Compensatory award 13. The Respondent is willing to concede that the compensatory award should be made at the statutory cap of 52 weeks’ gross pay. 14. 52 x £739.08 = £38,432.36. This is the statutory cap of the compensatory award. There is no scope to adjust the compensatory award above £38,432.36 (whether by grossing up or otherwise). 15. The Claimant’s compensatory award is therefore calculated at £38,432.36. Pin 3609 Hearing. 23 Oct 2023 C is not here as yet – C Counsel believes that she should be attending Mr P Powlesland – C counsel Mr G Welch – C witness Mr A Leonhardt – R counsel C not able to join – but C has done witness sstatment – but wquery whrther required. All is agreed – apart from the issue of the 26 v 52 week issue R –that weeks pay for the additional award - £571 – subject to statutory cap. Additional award – the non-compliance with reinstatement. Not subject to statutory cap on compensation award. But there is a statutory cap on the amount of the weeks pay should be capped. Statute states that it should be ‘a weeks pay’ – Should be a weeks ppay – not additional benefits - .s220. 2nd point – a supposition - ? whether shodl be reduce dto ‘a weeks pay’ - £571 – stat cap; or £793.08. 2nd issue – number of weeks – purpose behind proivisions – it’s a wide discretion – not bound by the followingprinciples – it’s a putative and not compensatory award. Its either tfianncail loss or injury to ffelings award. Financail loss – UD remedy of 1 year. And arbitrsry to disrtgard simply on These are not case law – these are the issues which I consider you should use. Case law says that it shold ot be a precistely cacluletf substitute for financaoll loss. But what would be just is effectively to look at this as a punative matter punusihing for noncomplaince. As com[pemnsated for fiannacla loss in the same way – fact sought reinstatement not expoised her to financial losses above evein if not rteaosnably prtacticab;le. So not a compensatory purpose… Another basis – ‘compensation’ for injury etc. resisted – there is no scope for injury to feelings award. So arbitrary and unfair. So principle facts to consider is the conduct of R throughout. Always case that UD unfair and R wanted jona nd reasonably pracitcab;le to do so and Order not complied with. This is bare minimum – so no aggravating factor – not to extend – this is the bare minimumfor any award. So little to justify more – as R not done more wrote. Eg R’s genuine belief in serius misconduct and C contributed – 10%. So not a case where dislissal was egregious or aggravated. And at remedy – that R ahd. Agenuine belief that not treasonably practicable. Albeit not unreasonable. What would justify higher award? 18 Julu note – reinstatement unliely – did not want C waiting for an unfavourable decision. And R acted tranpartently and witj ointention of awarding unnecessary upset. No aggravatged dismissal, R has engaged throughout ET process. So 26 weeks is appropriate. Judeg – lenth of losses- any bearing Can’t say no – but what would be just is it shold not – because none of this is affected by fact Judeg 0 fact hta R would be in role and being paid if reinstated R Shold give little eithight in comparison to reaonsabs for non-complance … C – weekly pay – agree – para 17.4 – IDS hanbdbook – s.220-29 ERA – current cap. The number of weeks – disagree with R’s suggestion that compensation not relevant. It’s a blend of botih R’s reasons and effect on C. The compensatory award is aimed to when reinstatement shodl have taken palce. Compensatory award is up to reinstatement, and then no losses. And further losses (and distress) is erlevant to this matter as well as R’s reasonas. Effect on C – it is more than average. C is genuine to have role back. Loved job. So huge emotional wrench, also a financial loss – age and job history means she will struggle to get another role. And has not done so. Likely she will not before retirement. Thererfore failure to reinstate caused loss to retirtement. Had she been reinstated would be receiving wages to retirement. So effect o nC can be taken into account; plas age and jpob history so unkluely to get anbother role – again take this into account. R's condict – to reiterate findings of ET. Belief of witness put foperward was judged to be genuine, but not rationa beucase of location and nature of that witnesers rtole – she worted in another part of company and no day to day interactions for C. And no further evidence from r of anyone who would be a mangare of C should she return. This could have dealt with C’s return, the staff petition, R failed to provide. So evidence they provided is not relevant or rational; R’s failure to privude addit evidence gives some basis to find that a wilful failure to reinstate, when it was practicable. Also another role is available – practically possible to put C back into role. So we only habve R’s reasoning a genine but irrational belief of someone unocmmcected to C. Judge – this witness talking about conopany ? Yes, but this witness shod be given less weight – this opinion nwas wrtong – a more convincing explanation nwoudl be a LM manager who would be dealing with C day to day. Eg cogent if complainant still in place = 16 weeks may be reaonsable. A genuine belief that C not appropriate shod not be weighted as are asonable expcuse of R to not comply with Order. And its not 26 weeks ubnless you can show differtn It’s a dicretion that ET ahs – between 26 and 52. Shoud be towards 52. Mr L – if reinstated, would get award if not gets an compensatory award. And 2R’s witness Ms Davifdson. In deciding what award to make, it is now well established that the tribunal has a wide discretion (see Mabirizi v National Hospital for Nervous Diseases

[1990] IRLR 133

[1990] ICR 281

, EAT; Morganite Electrical Carbon Ltd v Donne

[1987] IRLR 363

[1988] ICR 18

, EAT, and Motherwell Railway Club v McQueen

[1989] ICR 418

, EAT). In Mabirizi the EAT (Knox J presiding) stated that the purpose of the additional award is not to provide a 'precisely calculated substitute for financial loss' but rather to provide a general solatium to be fixed depending upon the merits of the case. In Donne it was held that in fixing the amount of the additional award, a proper assessment and balancing must take place. The conduct of the employer in refusing to comply with the tribunal's order and the employee's losses are particularly material. [2436] Notwithstanding the scope of the discretion, however, the following principles emerge from the cases. First, the award is not intended to cover something which is adequately and properly covered by the compensatory award. Second, the award is not intended merely to cover any additional loss suffered by the failure to reinstate or re-engage. Third, an important fact to consider is the employer's conduct: a deliberate refusal to comply will justify a payment at the top end of the scale whereas if the employer genuinely believes that there is a good reason for refusing to comply, this is likely to count in his favour notwithstanding that the tribunal does not accept that it was impracticable to comply with the order. So, in the Mabirizi case the EAT held that the employment tribunal were entitled to take into account the fact that the employers refused to reinstate because they genuinely believed that trust and confidence had broken down (though in many cases this will be sufficient in any event for the employers to establish that it was not practicable to reinstate). Finally, the tribunal is entitled to take into account the extent to which the claimant has failed to mitigate his loss, at least provided it is used as a general factor going to the merits of the case rather than as a precise factor producing a qualifiable reduction (see the Mabirizi case). It was also held in Mabirizi that the employee may not ask for a renewed order that they be reinstated or re-engaged. However, the tribunal should not pitch the award at a high rate in order to effectively compel compliance with the re-employment order (Morganite). Noted evidence of Ms Davidson Q so respect but ignire. A and no acknowledgement and understanding of impact, do not know whhwwe wold help her acilitate her back. Bullying and hatrassment. Thisthere are procedural impications of GM, but there is also the whole picture… Q so main reason why not think C could be reengaged is 5 a-c. A and one more – but also increadible because no incication from C that she agrees with anything that we have said – so no understanding – so for us to facilitate her back – given what she has said this morning, is not an Q so thagt no admitted tio wrongdoing A yes Q but a – c not obj to reengaging given they go against judgment – A my views remain the same. Then mater … Award – 44 weeks pay 44 x 571 = £25,124 Reasosn – clear claimanbt suffered losses and will do to retirement agae. Not the only trsson can award – Also considered rezsons of R is saying ont practicable. And find that R was demiontrating what it said C was gilty off. No view that it may take some effort, but it was practicable, and petition etc – and must consider that the reasons are inreaspamble held… So wareed is £53 k plus £25k. The respondent is ordered to reinstate the claimant on or before 15 September 2023. The respondent is ordered to pay to the claimant back pay, benefits and pension contributions in the sum of £50,894.64

REASONS

[1]At the remedy hearing I provided reasons for the Order for Reinstatement. The outstanding issues were the calculation on salary and benefits, whether a date for reinstatement could be agreed between the parties.

[2]The respondent has indicated it does not agree with the Order for reinstatement and may challenge it. It has provided salary, benefit and pension figures and calculation. The claimant was invited to comment on the figures, her representative says it does not agree with them but has provided no alternative figures or sums.

[3]The respondent provided a suggested date for reinstatement. Unfortunately, that date has now passed and the revised date is above.

[4]The figures presupposes that no pay award has been made for any period as stated by the respondent in its submission. If that is now wrong, the parties are expected to agree the revised figures. The law

[5]Employment Rights Act 1996 .s114 - Order for reinstatement(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.

(2) On making an order for reinstatement the tribunal shall specify— (a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement, (b) any rights and privileges (including seniority and pension rights) which must be restored to the employee, and (c) the date by which the order must be complied with.

(3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date on which he would have done so but for being dismissed.

(4) In calculating for the purposes of subsection (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer’s liability, any sums received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of— (a) wages in lieu of notice or ex gratia payments paid by the employer, or (b) remuneration paid in respect of employment with another employer, and such other benefits as the tribunal thinks appropriate in the circumstances. The calculation

[6]The salary & benefits calculationa. Date of dismissal 19 July 2022; Date of reinstatement 15 September 2023 = 424 days

b. Gross salary at dismissal £28,510 per annum

c. Attendance allowance of £4,506 pa

d. London allowance of £3,348 pa

e. Travel pass, rail leisure card etc. £4,000 pa

f. Gross salary and benefits - £40,364

g. Daily salary rate 40,364/365 = £110.59

h. £110.59 x 424 = £46,890.16

i. The sum at (h) to be subject to the deduction of tax and national insurance as though the claimant was an employee throughput the relevant period.

[7]Pension calculationa. Figures provided by pension fund on 17 July 2023 (363 days): Employee contribution: £1,371.33 Employer contribution: £2,057.03

b. Total annual contributions £3,428.36 / 363 x 365 = £3,447.25

c. £3,447.25 / 365 x 424 = £4,004.48