Mr M Burke v Magna Exteriors (Liverpool) Ltd: 2403207/2024

EMPLOYMENT TRIBUNALS

Case No 2403207/2024

Between

Mr M BurkeClaimant

Magna Exteriors (Liverpool) LtdRespondent

Before

Employment Judge Barker

Ms Morgan (instructed by counsel) for claimant

Mr Pincott (instructed by counsel) for respondent

Date 20 June 2025

JUDGMENT

[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.

[2]The following complaint of unfavourable treatment because of something arising in consequence of disability (section 15 Equality Act 2010) is well- founded and succeeds: The claimant was not consulted about remaining employed, when the decision to keep the respondent’s paint line open was made.

[3]The remaining complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed. Approved by EJ Barker 20 June 2025 Judgment sent to the parties on: 24 July 2025 For the Tribunal:

REASONS

[1]The claimant succeeded in his claim for unfair dismissal and one of the two complaints of unfavourable treatment because of something arising in consequence of his disability at the conclusion of the hearing before this Tribunal sitting from 16-19 June 2025. The matter was set down for a remedy hearing on 22 August 2025. The panel heard sworn witness evidence from the claimant and closing submissions from counsel for both parties. The Tribunal had the benefit of an updated Schedule of Loss from the claimant and a supplemental witness statement, although the claimant’s witness statement for the main hearing did contain a considerable amount of evidence relevant to our decision on the issues in this remedy hearing.

[2]The remedy hearing was conducted by video, with the parties appearing remotely and the panel sitting in the Liverpool ET hearing centre. The hearing was subject to a number of disturbances and interruptions due to building work being carried out on the floor above, which was audible to the parties via the video link, in particular (and very regrettably) when the claimant was being cross-examined on his evidence by the respondent’s counsel. We took a break to attempt to address the issue and resumed the hearing. The noise unfortunately continued but the parties agreed to continue with the hearing. The noise did then subside.

[3]The respondent’s case is that the claimant should recover no compensation for his unfair dismissal award. The reason for this is that the respondent submits that s123 Employment Rights Act 1996 (hereafter “ERA”) requires the Tribunal to give the respondent credit for any enhanced redundancy payment made to the claimant in excess of the statutory redundancy award required to be paid by s119 ERA, which in the claimant’s case is agreed by the parties to be £7394.50. The claimant’s total enhanced redundancy payment was £54,230.60. The enhanced element over and above the statutory minimum is agreed to be £46836.10.

[4]The claimant’s case at its highest puts his compensation for unfair dismissal at loss of salary and pension contributions to the date of the respondent’s total site closure, a period of 34 weeks. The claimant accepts that he would not have been retained in the respondent’s employment past the date of 31 August 2024. Case No: 2403207/2024 3 His salary and pension for that period is £32,341.82, taking his case at its highest. He also claims for £500 loss of statutory rights but we consider that this is not recoverable in circumstances where the claimant accepts that he would have been fairly dismissed in any event at a later date.

[5]The claimant also says that had he worked until 31 August 2024, he would have accrued another year’s service and so would have recovered an enhanced redundancy payment at that point of £4930.05 more than the payment he received on his dismissal in December 2023. His total financial losses would have been £37,271.81, minus Income Support received of £2065.12, a total of £35206.75.

[6]The claimant claims an uplift for the respondent’s failure to comply with the ACAS Code of Practice of 20%. Were he to have been awarded this, his total compensation for unfair dismissal would have been £42,248.10.

[7]However, the amount in excess of the basis award that he was paid on termination of his employment was £46,836.10. Section 123(7) ERA obliges a Tribunal to give credit to the respondent for having paid this to the claimant already, on termination of his employment. Therefore, we agree with the respondent that even if his case is taken at its highest, he could not have recovered any compensation for unfair dismissal. He has already been paid the equivalent of a basic award and more than the maximum he would have been awarded for his compensatory award, even if his case was taken at its highest.

[8]The claimant disagreed with this analysis. We have discussed below why we prefer the respondent’s submissions on this point. We have therefore made no findings of fact in relation to the level of compensation for unfair dismissal that the claimant would have recovered; it is not proportionate to do so, as we do not consider that in the circumstances, we have jurisdiction to award him any sums in respect of this head of loss.

Findings of Fact

[9]The claimant was cross-examined on the level of compensation claimed by him for injury to feelings, which was £15,000, in the middle band of the “Vento” bands of compensation. It is the respondent’s case that the claimant’s evidence on the injury caused to his feelings as a result of the discrimination arising in consequence of his disability is limited, and as a consequence the respondent has argued that the level of compensation should be set at the bottom end of the bottom Vento band.

[10]We agree with the respondent that the claimant’s witness statement produced for this remedy hearing contains very little evidence of the injury caused to his feelings as a result of the discrimination. The claimant’s claim was successful in relation to the allegation that the respondent failed to consult with him about Case No: 2403207/2024 4 the “Bentley” paint line remaining open because of something arising in consequence of his disability, which was his need for major surgery on his back.

[11]We note, however, that the claimant’s witness statement for the liability hearing in this case contains several statements which demonstrate the injury to his feelings caused by the respondent’s unlawful actions. Furthermore, the claimant raised a grievance following the respondent’s failure to consult with him over the Bentley paint line remaining open, and his grievance letter, and his subsequent comments made in the grievance hearing, are a contemporaneous record not disputed by the respondent of what he said at the time, about how hurt and angry he was about it. It cannot therefore be said that there is little or no evidence on this issue.

[12]The respondent’s closing submissions for this remedy hearing allege that the respondent’s “actions were a result of ignorance and the desire to conduct the redundancy process in circumstances where Mr Orton did not believe there was any need to further consult with the claimant after he had made the decision to proceed with two G3s rather than a shift manager.” However, we found facts that the respondent had the opportunity to consult with the claimant despite his absence from work on at least three occasions in December 2023 and failed to do so, before the decision was made to proceed with two G3s and not a shift manager (the shift manager role being the role the claimant could have carried out).

[13]The claimant’s close colleague Mr Davis, with whom he was in almost-daily contact during his absence and at the time at which the respondent failed to consult with him, was being consulted with throughout the period 11-15 December 2023 and on 12 December 2023 told their manager, Mr Orton, to contact the claimant for advice on whether the paint line could be run without a shift manager and if so, how. Mr Davies also told Mr Orton that the claimant would like to stay on at the respondent, but Mr Davies did not want to. Mr Orton failed to contact the claimant. On 13 December 2023 the claimant contacted Mr Orton directly and asked him to call him. Mr Orton failed to do so. The claimant sent another message on 14 December. Mr Orton replied to the effect that he would contact him, but he failed to do so. In the meantime, the respondent was carrying out a redundancy selection exercise with the relevant G3s and was even hearing a grievance from the unsuccessful G3 who had been told his contract would not be extended.

[14]Therefore, when Mr Orton finally contacted the claimant on Monday 18 December 2023, the decision had been taken at the end of that week to keep both G3s on and not to keep a shift manager. We therefore do not accept that the decision had already been taken by Mr Orton and that there was no need to consult with the claimant; Mr Orton had consulted with all of the other interested parties as to how the paint line should be run in the future, and we found that the only reason that the claimant was not consulted with was Case No: 2403207/2024 5 because he was absent. Mr Orton took the opportunity to exclude him to make matters easier for him.

[15]The exclusion from the process, we find, caused the claimant significant injury to his feelings. The discrimination was overt, in that the claimant was being kept regularly updated by Kevin Davies and other colleagues from when the announcement was first made on 7 December 2023, through to the end of the week on 15 December 2023. He said in his witness statement, paragraph 57: “Having worked for this company for 15 years, I became good friends with several colleagues… I was being very much kept in the loop as to what had been going on in the company, and I trusted my colleagues that they were telling me the truth.”

[16]Meanwhile, the claimant was in hospital recovering from his surgery, inviting Mr Orton to contact him, but he did not. He also asked Ms Lamb, the HR manager, if someone could contact him to discuss this, but no-one had that discussion with him that week. The claimant was therefore fully aware that extensive negotiations were taking place with his colleagues but that he was powerless to influence them.

[17]His witness statement for the liability hearing said, at paragraph 39 “When I spoke with Phil [Orton] on 18 December 2023, he told me that eight members of my team were staying on. I felt very upset by this because no-one had even bothered to ask me whether I would like to continue working for the company. I was also upset because I had more knowledge of the Bentley work than anyone else – I wrote the process for the mould router and paint; I even went to Germany to launch this programme.”

[18]He knew, during that period, that his colleague Kevin Davies had been offered the opportunity to be shift manager and he was not offered the same opportunity. It was not disputed by the respondent that the claimant was the subject matter expert for the Bentley paint line. During his grievance meeting on 9 January 2024, the minutes record the following statement from the claimant to Mr Orton: “I had a phone call with you, you advised me that 8 parties of my team were staying and I wouldn’t be required, at the time I was flabbergasted, I would like to think of myself as a Bentley guru, I have more knowledge of Bentley than anyone else…..yet I have been overlooked and in the dark, to feel the way I did you can imagine I have been given 15 years of my life, to be kept in the dark and to be treated the way I have I felt aggrieved and it was unjust.” Case No: 2403207/2024 6

[19]In his grievance letter, sent on 21 December 2023, which complained about the respondent’s failure to consult with him over the extension of the Bentley paint contract, he wrote: “I am deeply upset about at this as Magna has been my working life for the past 15 years and I hoped to see the rest of my working life out with the company – obviously that will not be the case here, however the thought of not being kept to the very end with my team has caused me no end of stress and anxiety whilst I should be recovering from major surgery”

[20]The claimant knew at the time that he was being overlooked due to his disability related absence. His witness statement (paragraph 48) for the liability hearing said, in relation to his decision to raise a grievance on 21 December 2023: “I was already anxious about not having a job to go to when I was sufficiently recovered from my surgery and this unfair treatment caused me further stress and anxiety at a time when I should have been focusing on recovery from major surgery.”

[21]The claimant has asked that we award aggravated damages. However, we have declined to make such an award, as we have taken account of these factors in the injury to feelings award already, as we have discretion to do. Unfair dismissal

[22]The claimant’s loss is said by him to be £59,160.60, which is comprised of his additional enhanced redundancy payment of an extra year’s service of £4930.05 as well as the enhanced redundancy payment he has already received, which was £54,230.60.

[23]The respondent’s case is that at its highest, his financial loss caused by the dismissal in relation to his redundancy payment can only be the additional enhanced redundancy payment of an extra year’s service of £4930.05. The respondent’s case is that he has already received the enhanced redundancy payment of £54,230.60 and so this cannot be his “loss”.

[24]The claimant’s case is that, but for the discrimination, he would have been able to work at his previous managerial salary for 6 months until the paint line finally closed on 31 August 2024 and would have also received 6 months’ pension contributions. The respondent disputes this.

[25]For reasons which will be clarified below, we have not made any findings of fact in relation to the claimant’s loss of earnings as a consequence of his dismissal; we consider that we have no jurisdiction under the provisions of the Employment Rights Act 1996 to award him any compensation for his unfair dismissal. The Law: Case No: 2403207/2024 7 Unfair dismissal compensatory award

The Law:

[26]The compensatory award for unfair dismissal is to compensate for the losses that the employee suffers as a consequence of being unfairly dismissed. To do this a claimant must be awarded ‘such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer’, s123(1) Employment Rights Act 1996.

[27]S123(7) of ERA states “If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy (whether in pursuance of Part XI or otherwise) exceeds the amount of the basic award which would be payable but for section 122(4), that excess goes to reduce the amount of the compensatory award.”

[28]In Digital Equipment Co Ltd v Clements (No.2)

1998 ICR 258

, CA it was held that enhanced redundancy payments must be subtracted from the compensatory award after calculation of the claimant’s losses had been calculated. ‘Parliament has drawn a clear distinction in the treatment of the excess of redundancy payments… and the other elements which go to make up the loss’. S123(7) specifically provides that excess redundancy payments should be deducted from the compensatory award itself, rather than being treated as part of the calculation of the employee’s losses which go to make up the amount of the compensatory award. The correct approach, therefore, is first to assess the employee’s loss and then to deduct from the resulting compensatory award the excess redundancy payment. This method, said the Court, accords with the clear intention of s123(7) that employers should receive full credit for redundancy payments that are larger than required by statute.

[29]In MacCulloch v Imperial Chemical Industries Ltd EAT 0275/09 an employment tribunal fell into error by offsetting an enhanced redundancy payment against the claimant’s losses and then deducting the amount of the payment that exceeded the basic award from the claimant’s compensatory award. Where a tribunal determines that, but for the dismissal, the claimant would have received a larger enhanced redundancy payment at a later date, the correct approach is to include in the calculation of loss a sum that reflects the payment the claimant would have received, minus the amount of a basic award to which the claimant would have been entitled at the later date. Only once the losses have been calculated, and any other adjustments or deductions made, should the tribunal deduct from the compensatory award the amount by which the redundancy payment that the employee did receive exceeds the basic award.

[30]In Mogane v Bradford Teaching Hospitals NHS Foundation Trust (No.2)

2025 EAT 68

, which dealt with how to factor in an enhanced redundancy payment when compensation is subject to a Polkey reduction, i.e. a reduction to reflect Case No: 2403207/2024 8 the possibility that the claimant would have been fairly dismissed had a fair procedure been followed. In that case, the EAT rejected the claimant’s argument, that her loss should be calculated by including in the initial assessment of loss something that was a financial benefit of her dismissal. It could not be ‘just and equitable’ to calculate the compensation due by reference to something which had not been lost at all, in that case, an enhanced redundancy payment. Such an approach was incompatible with the Court of Appeal’s decision in Digital Equipment Co Ltd v Clements (No.2) (above). The EAT held that there was nothing in MacCulloch to support the proposition that the calculation of loss for the purposes of s123(1) ERA should include the loss of an enhanced redundancy payment that was actually paid to the claimant. The reason that the loss of an enhanced redundancy payment was taken into account in MacCulloch was because, in that case, the tribunal had found that the claimant’s dismissal had deprived her of an additional sum by way of an increased enhanced redundancy payment which would have been paid to her if a fair procedure had been followed. Injury to feelings

[31]Vento v Chief Constable of West Yorkshire Police (No.2)

2003 ICR 318

, CA identified three broad bands of compensation for injury to feelings:a. a top band to be applied only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in very exceptional cases should an award of compensation for injury to feelings exceed £25,000

b. a middle band for serious cases that do not merit an award in the highest band, and

c. a lower band appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.

[32]Presidential guidance issued by the Presidents of the Employment Tribunals each year ensures that the Vento bands are increased in line with the Retail Prices Index (RPI). The guidance applicable to this case was published on 25 March 2024. In respect of claims presented on or after 6 April 2024, the “Vento bands” are as follows: a lower band of £1,200 to £11,700 (less serious cases); a middle band of £11,700 to £35,200 (cases that do not merit an award in the upper band); and an upper band of £35,200 to £58,700 (the most serious cases), with the most exceptional cases capable of exceeding £58,700.

[33]Employment tribunals have a wide discretion when deciding on the level of award to make for injury to feelings. An appeal will generally only be successful if the employment tribunal ‘acted on a wrong principle of law or… misapprehended the facts or… made a wholly erroneous estimate of the damage suffered’. (Skyrail Oceanic Ltd v Coleman

1981 ICR 864

, CA) Case No: 2403207/2024 9

[34]Vento v Chief Constable of West Yorkshire Police (No.2)

2003 ICR 318

, CA a decision on the level of injury to feelings awarded can only be overturned ‘if it is shown to be a perverse conclusion, that is a decision which no reasonable tribunal, properly directing itself on the law and on the materials before it, could reasonably have reached.’

[35]Whether or not the claimant knew of the discrimination at the time, and how much he or she knew, is a relevant factor in an assessment of injury to feelings. Taylor v XLN Telecom Ltd and ors

2010 ICR 656

, EAT ‘the distress and humiliation suffered by the victim will be greater where the discrimination is overt, or where, even in the absence of overt signs, the victim understands the motivation at the time to be discriminatory; and in such cases the compensation may be correspondingly higher.’

[36]Further guidance on injury to feelings awards was given by the EAT in Eddie Stobart Ltd v Graham

2025 EAT 14

. It noted that there had to be some evidence of injury to feelings before an award could be made. When evidence is otherwise sparse, the manner of discrimination could be a useful guide to infer the level of injury, provided that the tribunal does not lose sight of the fact that it is compensating the claimant for the injury, and not the manner of discrimination. Relevant considerations include:a. whether the discrimination was ‘overt’. Overt discrimination is more likely to cause distress and humiliation

b. the existence of ridicule or exposure. Discrimination played out in front of colleagues or for others to see might well cause greater harm. It might provide a reasoned basis for inferring as a fact the seriousness of the injury suffered, especially in respect of compensable feelings of humiliation

c. whether the discrimination reflects or exposes an asymmetry of power, influence and information. In some cases, that could be manifested in disciplinary threats that create worry, or in exclusion that causes isolation.

d. the claimant’s description of the injury. Tribunals should be ready to scrutinise apparent stoicism with as much care as apparent upset; for some individuals, stoicism is the ‘refuge of the inarticulate’.

e. the duration of consequences. A claimant’s upset may be fleeting, or it may be long lasting, and much may depend on his or her levels of fortitude and resilience

f. the effect on past, current and future work. It may be relevant to consider the extent to which a claimant’s self-esteem was bound up in his or her occupational life, which differs from person to person. An evidenced wish to leave an enjoyable and fulfilling line of work owing to discriminatory treatment can properly inform the tribunal’s assessment of the hurt caused. Case No: 2403207/2024 10

g. the effect on personal life or quality of life. Aggravated damages

[37]Commissioner of Police of the Metropolis v Shaw

2012 ICR 464

, EAT - aggravated damages are an aspect of injury to feelings and should be dealt with as a sub-heading under the same head of loss to avoid over-compensation. Aggravated damages are compensatory only and should not be awarded to punish the respondent. Punishment is a feature of exemplary damages. Tribunals should avoid compensating claimants under both heads for the same loss. The ultimate question is whether the overall award is proportionate to the totality of the claimant’s suffering. Uplift for failure to follow the ACAS Code of Practice

[38]The ACAS Code sets out minimum standards of reasonableness and fairness for handling disciplinary issues and employee grievances. With regard to grievances, the employee should let the employer know the nature of the grievance, and the employer should hold a meeting at which the employee may be accompanied, decide on appropriate action, and allow the employee to take the grievance further if it is not resolved at that stage.

[39]Section 207A(2) and (3) allow for an adjustment to an award for failures to comply with the Code if the tribunal considers it ‘just and equitable in all the circumstances’.

[40]Slade and anor v Biggs and ors, the EAT upheld a 25 per cent ACAS uplift to awards of injury to feelings and aggravated damages, rejecting the argument that this entailed impermissible ‘double counting’. It was accepted following Acetrip Ltd v Dogra EAT 0238/18 that there was a punitive element to an ACAS uplift. The EAT suggested that an employment tribunal might consider whether the uplift overlaps (or potentially overlaps) with other general awards, such as injury to feelings. If so, the tribunal should then consider what percentage adjustment, if any, to make to those awards in order to avoid double counting. Order of adjustments

[41]In Digital Equipment Co Ltd v Clements

[1997] EWCA Civ 2899

it was emphasised that Tribunals must adjust awards of compensation in the correct order to avoid falling into error. Tribunals should calculate the total losses suffered by the claimant then deduct any amounts received from the employer such as payment in lieu of notice or a payment which is made to the employee as compensation for the dismissal other than any enhanced redundancy payment above the basic award. If there is to be any 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), then apply any deduction for an enhanced redundancy payment to Case No: 2403207/2024 11 the extent that it exceeds the basic award (s123(7) ERA 1996), then calculate any interest on past losses. Calculation of interest

[42]A tribunal can award interest on awards of compensation made in discrimination claims brought under s124(2)(b) Equality Act 2010, to compensate for the fact that compensation has been awarded after the relevant loss has been suffered. Interest is paid at 8% and is awarded on injury to feelings awards from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation. Interest is calculated after the final adjustments have been made to the award and after enhanced redundancy has been deducted. Application of the law to the facts found Injury to feelings

[43]Considering the evidence available to assess the appropriate award for the claimant’s injury to feelings, we have taken into account the recent guidance of the Employment Appeal Tribunal in Eddie Stobart Ltd v Graham. We agree with the respondent that the claimant’s remedy witness statement does not provide much, if any, direct description of the alleged injury. Nor does the available medical evidence show that the claimant sought an increase to, for example, any medication for stress, anxiety or depression.

[44]However, the Eddie Stobart guidance does not limit the evidence that the Tribunal can take into account simply to those factors. Tribunals are also told to “be ready to scrutinise apparent stoicism with as much care as apparent upset; for some individuals, stoicism is the ‘refuge of the inarticulate’…”. We do not consider the claimant to be inarticulate; on the contrary, he was a candid and helpful witness. However, we find that the claimant is stoical, which is almost certainly a result of his time spent in active service in the Armed Forces. He told us that his method of coping with his post-traumatic stress disorder was to keep himself busy and active. He is therefore, we find, less likely than most claimants to dwell on any injury, whether physical or mental. This is how he manages his disabilities and continues to lead an active and productive life. This fortitude and resilience does not mean that he did not also suffer injury to his feelings as a result of the discrimination.

[45]The Eddie Stobart guidance requires to the Tribunal to consider whether the discrimination was ‘overt’ and notes that overt discrimination is more likely to cause distress and humiliation. The guidance also notes that Tribunals should consider the existence of ridicule or exposure, as discrimination played out in front of colleagues or for others to see might well cause greater harm. Finally, we should consider whether the discrimination reflects or exposes an asymmetry of power, influence and information. In some cases, that could be Case No: 2403207/2024 12 manifested in disciplinary threats that create worry, or in exclusion that causes isolation.

[46]In the claimant’s case, the respondent’s behaviour was overt, had the effect of exposing the discrimination in front of the claimant’s colleagues, and exposed the claimant’s exclusion from the consultation process, and exposed that he was isolated from the rest of his team as a result of his disability-related absence.

[47]As the findings of fact above show, the claimant’s colleagues and the rest of his team knew that a period of intense consultation was being carried out between 11 and 15 December 2023 without the claimant. The claimant knew this was happening as his colleagues were keeping him informed. He asked the respondent to contact him, and Mr Davies asked the respondent to contact him. They failed to do so. His witness statement for the liability hearing notes, at paragraph 82 onwards: “It was also disappointing that neither Phil Orton, my manager, nor anyone else above his level, bothered to let me know. It was only because I was fortunate to have good colleagues like Kevin and Mark, who kept me in the loop, that I was aware of what was happening. Even when Kevin assured me that he had spoke to both Phil and Sarah (HR) and told them I wanted to say on and that they should contact me, neither Phil nor Sarah nor anyone else bothered to contact me. I felt that I was being deliberately left out and kept in the dark because I was absent from work and in hospital…. I was treated differently from everyone else and the only reason for this was because I wasn’t in work due to my operation….. I was anxious about my operation, and anxious generally about being out of work…I was even more anxious being in hospital and not being kept informed by any of my managers, as well as being ignored or fobbed off when I did manage to speak with Phil…. There was a lack of transparency and I wasn’t really in a position to do much about the situation, which was frustrating. I felt really let down, including by Phil. When I did raise a grievance – which included my dissatisfaction with how Phil had handled everything – my grievance was investigated by Phil, who surprisingly also dealt with my grievance appeal, and did so quite flippantly. I felt very let down and extremely disappointed after having given the company my all for 15 years.” Case No: 2403207/2024 13

[48]Also, it is clear to us that the claimant’s work was very important to his self-esteem. He had no wish to be forced to leave what had clearly been an enjoyable and fulfilling role for him, and one of which he was proud.

[49]We consider, for these reasons, that the claimant’s award should not be in the lower Vento category. It is not “less serious” – we consider the discrimination to have been significant, overt, and caused the claimant distress in circumstances where he was entirely excluded and powerless to challenge the respondent’s actions, due to his disability.

[50]However, the claimant’s resilience and determination would appear to have resulted in the effects of the discrimination being something that he has been able to recover from. He has effectively looked for alternative work, including re-training as an HGV driver. He reports no long-lasting psychiatric illness or damage as a result of the discrimination, and his medical records show no treatment was sought by him as a result. He makes no report of his personal relationships, sleep, family life or other issues being affected. His fortitude is to his great credit, but we can only conclude that he has recovered to a considerable extent from his treatment by the respondent, and for that reason we have set the level of his compensation at the lower end of the middle Vento band of £13,000.

[51]As set out below, this award is also subject to an uplift for the respondent’s failure to follow the ACAS Code of Practice in relation to the respondent’s handling of the grievance. We have set this at 20% and so the claimant’s total award for injury to feelings is £15,600.

[52]In relation to the calculation of interest, this is payable on the full period between the date of the discrimination to the date of calculation. We find that the injury to his feelings took place over a period between approximately 7 December 2023 to the end of January 2024. Not all of the injury took place at the start of the period; there were a number of incidents. We have therefore fixed 1 January 2024 is the approximate mid-point of this period as a fair point from which to calculate.

[53]Therefore, from 1 January 2024 to the date of calculation (22 Sept 2025), a period of 630 days at 8% daily rate and £15,600 amounts to £17754.08 total compensation. Unfair dismissal – no award of compensation

[54]The decision of the Court of Appeal in Digital Equipment Co Ltd v Clements (No.2) was that the correct approach in circumstances where a claimant was unfairly dismissed, but had received an enhanced redundancy payment, is first to assess the employee’s loss and then to deduct from the resulting compensatory award the excess redundancy payment. This method, said the Case No: 2403207/2024 14 Court, accords with the clear intention of s123(7) that employers should receive full credit for redundancy payments that are larger than required by statute.

[55]The claimant’s case is that he is entitled to include in a calculation of his loss the whole of his additional enhanced redundancy payment of £59,160.60, which is comprised of his additional enhanced redundancy payment of an extra year’s service of £4930.05 as well as the enhanced redundancy payment he has already received, which was £54,230.60.

[56]He relies on MacCulloch in support of this, and in particular that in MacCulloch, the claimant’s “loss” (as defined in s123(3) ERA) was said to be the “enhanced redundancy payment” she would have received had she been allowed to work longer, instead of being unfairly dismissed.

[57]Section 123(3) ERA states that “loss” shall be taken to include any loss of any entitlement to a payment on account of dismissal by reason of redundancy. The respondent’s case, which we agree with, is that the claimant cannot by any reading of s123 ERA be said to have “lost” his entitlement to £59,160.60. As the claimant in this case had already been paid £54230.60 on dismissal, this sum cannot be said to have been a loss sustained. Had the claimant remained in employment to 31 August 2024, he may have been entitled to an additional £4930.05 on top of the enhanced redundancy payment he was entitled to on his dismissal in December 2023. Therefore, his loss in relation to his redundancy payment can only be a maximum of £4930.05. We agree with the respondent’s interpretation in this case.

[58]In particular the claimant cites paragraph 19 of the judgment in MacCulloch where it is said “Finally, considering the statutory purpose of the compensatory award provisions, in my judgment, it cannot have been the intention of the legislature to leave a successful claimant for unfair dismissal worse off in regard to an enhanced redundancy payment received by him than someone fairly dismissed who was in receipt of such payment.

[59]However, this would not appear to accord with the decision in Digital Equipment, where the Court of Appeal held that enhanced redundancy payments must be subtracted from the compensatory award after calculation of the claimant’s losses had been calculated. ‘Parliament has drawn a clear distinction in the treatment of the excess of redundancy payments… and the other elements which go to make up the loss’. S123(7) specifically provides that excess redundancy payments should be deducted from the compensatory award itself, rather than being treated as part of the calculation of the employee’s losses which go to make up the amount of the compensatory award. This would appear to be the statutory purpose of s123(7), to give the employer who pays an enhanced redundancy payment credit for having done so, set off against any compensatory award paid to the claimant, even though, as was said in MacCulloch, this puts them effectively in a worse position than Case No: 2403207/2024 15 someone fairly dismissed in the same circumstances. It is a public policy decision, designed to avoid the employer having to pay compensation for loss of office to an employee twice – once by way of an enhanced redundancy payment and then again as loss of earnings in a successful unfair dismissal claim.

[60]Subsequent interpretation of the MacCulloch case in the Mogane decision indicated that the EAT did not consider MacCulloch to be authority for including the whole of an enhanced redundancy payment in a calculation of loss, including sums already received by the claimant. The EAT said it could not be ‘just and equitable’ to calculate the compensation due by reference to something which had not been lost at all, in that case, an enhanced redundancy payment and that this was incompatible with the Court of Appeal’s decision in Digital Equipment Co Ltd v Clements (No.2). The EAT held that there was nothing in MacCulloch to support the proposition that the calculation of loss for the purposes of s123(1) ERA should include the loss of an enhanced redundancy payment that was actually paid to the claimant. The reason that the loss of an enhanced redundancy payment was taken into account in MacCulloch was because, in that case, the tribunal had found that the claimant’s dismissal had deprived her of an additional sum by way of an increased enhanced redundancy payment which would have been paid to her if a fair procedure had been followed.

[61]Taking the claimant’s case at its highest, and if we assume that the claimant would have worked until 31 August 2024 at managerial grade, and been paid £29340.64 plus pension of £3001.18, and been given an extra year’s enhanced redundancy payment of £4930.05, his total losses can only have been £37271.87. He is not entitled to the £500 loss of statutory rights claimed in the Schedule of Loss as he accepts that he would have been fairly dismissed in any event at a later date. No award should be made where there is a finding that the claimant would have been fairly dismissed at a later date in any event (Puglia v C James and Sons

[1996] IRLR 70

[62]The claimant has losses which can at their highest possible future only amount to £37271.87. We are obliged to give credit for the enhanced element of the redundancy payment already paid, which is £46,836.10 (minus the basic award, as required by s122 ERA). He therefore has no losses for which we are able to compensate him. Uplift for failure to follow the ACAS Code of Practice

[63]We note that the duration of the claimant’s injury to feelings was not confined to the period where he was excluded from consultation in mid-December 2023. He raised a grievance on 23 December 2023 and the grievance process carried on to 24 January 2024. The claimant’s injury to feelings was compounded, as he says above, by the respondent’s superficial and cursory handing of his grievance. He also says that this did not follow the ACAS Code of Practice. Case No: 2403207/2024 16

[64]We have been mindful, in our deliberations, not to award the claimant sums for both injury to feelings and for the respondent’s failure properly to handle his grievance, as this would amount to him being compensated for the same thing twice.

[65]We have therefore taken account of his injury to feelings up until the date he raised his grievance, so 23 December 2023. At that point the respondent then had an opportunity to address the failures alleged by the claimant.

[66]However, the respondent acted unreasonably in that it did not address the claimant’s grievance in accordance with the rules of natural justice and fairness. We do not accept either that the respondent’s actions in affording the claimant a proper procedure would have been pointless, or that they did not have enough time to do so. The claimant’s grievance was being heard in January 2024 and the paint line was remaining open until August 2024. In breach of paragraphs 41 to 45 of the ACAS Code of Practice, the claimant was not allowed the right of appeal, and the claimant’s request for an appeal was not dealt with impartially, as Mr Orton was still involved in the process at that stage.

[67]We also note that in breach of the ACAS Guide that accompanies the code, the respondent did not act impartially and objectively in relation to hearing the claimant’s grievance – we find that they did not approach the matter with an open mind and did not put care and thought into resolving the claimant’s complaints.

[68]However, we note that the respondent did arrange a meeting, allow the claimant the right to be accompanied, and responded within a reasonable time taking into account the Christmas shut-down period.

[69]We therefore consider an uplift of 20% to be appropriate in this case. Case No: 2403207/2024 17 Approved by EJ Barker 29 September 2025 Judgment and reasons sent to the parties on: 11 November 2025 For the Tribunal: ……………………………………