Employment Tribunals Rules of Procedure 2013 Rule 53(1)(a) It is the judgment of the tribunal that:[1]The application by the respondent that the claimant do give full disclosure of his medical records going back to 2008 is granted, and the claimant is ordered to give such disclosure by 17 July 2017.[2]The claimant shall complete his disclosure by disclosing to the respondent by 17 July 2017 all potentially relevant documents , including, but not limited to , any diaries, notes, correspondence with his union, medical treatment records, documents relating to receipt of, or applications for, state benefits and all mitigation documents.[3]The claimant’s application to amend his claim to add a second protected act to that which was originally pleaded , namely that in his appeal meeting on 30 August 2016 his union representative did a protected act in stating that his treatment amounted to an act of discrimination on the grounds of disability within s.27(2)(d) of the Equality Act 2010 is granted.[4]The claimant’s application to amend his claim by adding an alternative plea of victimisation under s.27(1)(b) of the Equality Act 2010 is refused.[1]The respondent have permission to amend the response by 31 July 2017.[2]The date by which the respondent is required to concede disability, or otherwise, is extended to 7 August 2017.[3]The claimant do serve a Schedule of Loss by 11 May 2017.[4]There be a further preliminary hearing on 4 September 2017at Manchester at 10.00 a.m. , listed for one hour.
REASONS
Conclusions
[1]By a claim form presented on 15 November 2016 the claimant brings claims of unfair dismissal and disability discrimination arising out of the termination of his employment on 5 August 2016. The claimant was represented by Mr Andrew O’Neill of Chambers O’Neill , solicitors, and it was they who drafted and submitted the claim form on his behalf. A response was entered on 16 December 2016 , by solicitors acting for the respondent. A preliminary hearing was held by telephone on 13 February 2017, by Employment Judge Feeney. Mr O’Neill appeared for the claimant on that occasion, and Mr James Wynne of counsel appeared for the respondent. The parties have been so represented again in this preliminary hearing.[2]In that hearing , as recorded by the Order sent to the parties on 27 February 2017, there was discussion of the issues, and a draft List of Issues was before the tribunal. The respondent had raised the need for further particularisation of some of the claimant’s claims, and this was provided orally in course of the hearing. The position was left that the draft List of Issues would be updated to take account of the further particularisation provided.[3]In that hearing there was also discussion of the medical evidence that was to be disclosed by the claimant. The respondent had sought disclosure of all of the claimant’s medical records over the relevant period. This was resisted, on the basis that only medical records relating to the alleged disabilities should be disclosed. Employment Judge Feeney agreed, noting in para. 5 of the Preamble that if, on receipt of the medical records the respondents wished to make a further application, they were free to do so. Case management orders were therefore made for disclosure of “all relevant medical records”, and for the claimant to provide an “impact statement” in relation to his alleged disability.[4]The claimant duly, after some variation to these orders, subsequently disclosed medical records, and served his impact statement. The respondent was to indicate, thereafter, whether disability was conceded.
Law
[5]A further preliminary hearing by telephone was listed for 7 April 2017. In the meantime, a dispute arose between the parties as to the extent to which the claimant’s claims of victimisation were or were not presently before the tribunal, or whether[6]The claimant’s position was that this further protected act had been referred to orally in the hearing before Employment Judge Feeney, and was to be dealt with by including it in the revised List of Issues. The position therefore was that there was no need for amendment. Alternatively, if there was, the amendment should be granted.[7]The respondent having been told by the tribunal that any issues relating to disclosure should be the subject of an application, by letter of 29 March 2017 made an application to the tribunal for further disclosure, contending that what had been disclosed did not comply with the order made, and seeking disclosure of the claimant’s full medical records for the relevant period. By letter of 29 March 2017 from his solicitors, the claimant objected to the respondent’s application, contending that the tribunal’s order was clear, and had been complied with.[8]The tribunal vacated the hearing of 7 April 2017, and re-listed it for 2 hours. After a further postponement to accommodate representation by Mr Wynne at the hearing, this preliminary hearing was convened to deal with the outstanding issues and applications.[9]That, then, is the procedural history which has led up to this hearing. The tribunal accordingly had before it at the start of the hearing: a) The respondent’s application for disclosure of the claimant’s medical records; b) The respondent’s application for disclosure generally; c) The claimant’s application to amend.[10]Additionally , a potential further new claim was indicated by the claimant, in that in the draft List of Issues proposed by the claimant , on or about 26 April 2017, there appeared at Para. 14, under “Victimisation” an alternative plea that, in the event that the two alleged protected acts referred to in paras.13.1 and13.2 were found not to be protected acts, the claimant sought to plead in the alternative that the respondent believed that that claimant had done, or may do, a protected act, so as to bring the claims within the ambit of s.27(1)(b) of the Equality Act 2010. The respondent contended that this was a yet further amendment, to which objection would be made. As Mr O’Neill accepted that this alternative plea had not been raised previously, and this could be considered to be a further application to amend, the tribunal afforded the respondent an opportunity to respond to it, which was one in writing by letter of 4 May 2017, in which the respondent objected to the application, and set out its reasons for doing so.[11]In addition to the respondent’s Skeleton Argument, there were two Bundles before the tribunal, one from the respondent, and one from the claimant, the latter bearing page numbers beginning “C”, so differentiating references to each Bundle in the ensuing
discussion.
[12]The tribunal having reserved judgment pending those further representations, now[13]This was the first contentious issue. It is unclear what the terms of the order made by Employment Judge Feeney mean, and whether the order was limited to disclosure relating solely to the claimant’s alleged disability. The term used in para.5 of the Preamble is “the relevant medical evidence”, and in that paragraph the Employment Judge expressly declines to order, at that stage, disclosure , as sought by the respondent, of all the claimant’s medical records “over the relevant period”. The claimant has interpreted this as meaning that he need only disclose those medical records which relate to his alleged disability. That view is supported by the wording of para. 10 of the Orders made, under the heading “Disability Status”, where the claimant was ordered to provide the respondent with “all relevant medical records”.[14]The claimant has therefore disclosed only records relating to his alleged disability. The respondent contends that even that is incomplete, and points to apparent gaps in the records, where there appear to be no consultations recorded. For the claimant Mr O’Neill maintains that this is all there is. He points out that it is for the claimant to establish disability, and if this is inadequate, that is his problem. He resists the respondent’s application for more extensive medical disclosure covering non – disability conditions and absences, saying that this has not been, and should not be, ordered by the tribunal.[15]For the respondent Mr Wynne argues that what has been disclosed is insufficient to enable the respondent to take a view on disability. He also expressed concern that the documents disclosed include a letter from the claimant’s GP of 24 February 2017, addressed to the claimant’s solicitor (pages 2 to 3 of the Bundle) which makes reference to a letter dated 13 February 2017 from the solicitor. Mr Wynne argued that this was, in effect a letter of instruction, and was disclosable. Further, this letter from the GP, and two others post – dated the preliminary hearing, and appeared to be prepared for the purposes of the claim, and were not “records”.[16]Additionally, there was a letter from the claimant’s GP, dated 25 August 2016 , addressed “to whom it may concern” (page 1 of the Bundle). There was no disclosure, however, of any correspondence which gave rise to this letter.[17]Mr Wynne contends that the claimant and his solicitor cannot “filter” the medical evidence in this way. The respondent is considering the instruction of an expert, not only on the issue of disability, but also issues as to Polkey . That expert would need to see the totality of the medical evidence, not merely what the claimant’s side considered to be relevant.[18]The respondent’s application, however, goes further than that, in that it seeks disclosure of all of the claimant’s medical records from 2008, and not simply those which pertain to his alleged disability. The basis for that is the respondent’s contention that it will be necessary for the tribunal to consider the claimant’s sickness absence record, and his reasons for absences, in determining , firstly, liability, and secondly, an issue, raised on the pleadings and contained in the List of Issues, as to whether , if successful, the claimant’s compensation should be reduced on the basis of Polkey .[19]For the claimant Mr O’Neill resists the widening of the scope of the disclosure order, and urges the tribunal to restrict it, as the orders of Employment Judge Feeney had done, to disability related material only. He was prepared to provide the respondent with a copy of his letter of 13 February 2017 which resulted in the GP’s letter referred to, and he was not (now at least) claiming privilege in relation to this document. In relation to the GP’s letter of 25 August 2016, Mr O’Neill could not assist, as at that time the claimant was being assisted by his union, and that letter was taken with him to his appeal hearing.[20]Mr O’Neill accepted that the disclosure given had been confined to the issue of disability, as that was what was ordered. To that extent he accepted that it was not full, there would probably be other, non – disability related material. The burden of proof of disability, however, lies with the claimant, and if the disclosure is insufficient for this purpose, ultimately it will be the claimant who is prejudiced.[21]The claimant did object to disclosing medical records going back to 1999 or 2008. The respondent had its own Occupational Health reports, so knows the relevant medical history. There was some discussion as to whether any disclosure ordered should be restricted to a nominated expert, or the respondent’s legal team and perhaps an HR adviser of the respondent, but this was not pursued. The tribunal’s ruling.[22]The tribunal accepts that the previous orders made were limited to the issue of disability, and to that extent the claimant was entitled to limit his disclosure to that issue. Whether he has given full disclosure, however, remains in doubt, and to that extent there may be more that is required.
The Law
[23]The real issue, however, is whether now, as was not ruled out, and indeed, never could be, the tribunal should order disclosure from the claimant on a wider basis, in relation to all of his medical records from 1999 or 2008.[24]The touchstone of disclosure is relevance. Disclosure will generally be ordered if the documents are relevant to the issues in the claims. That said, disclosure has to be proportionate, and should not merely be permitted for speculative purposes.[25]It is important to focus upon the claims made in this case, and the responses put forward. The claimant was dismissed for failing to attend work on a regular and consistent basis. He was subject to a final written warning at the time of his last absence. The claim form and the response both make reference to the claimant’s absence history. Para. 9 of the Grounds of Complaint sets out absences going back to 2012. Complaint is made of the warning issued in October 2013, and of the application of the respondent’s policy (said to be unfair in itself) to him as a person with a disability.[26]The claimant’s disclosure thus far covers the period 2010 to 2015, and it seems that the point from which he is alleging that he had a relevant disability was 2010. It is clearly the case that he contends that this was the case from September 2015, but when prior to that the condition is alleged have constituted a disability is unclear. His Impact Statement suggests August 2010, and his medical disclosure goes back that far.[27]In support of its Polkey plea, the respondent will rely upon the claimant’s absence record from 2008 onwards. The details of those absences , some or all of which may not be disability related , have been pleaded.[28]The tribunal’s conclusion is that the claimant should now give disclosure of all his medical records going back to 2008. Going further back to 1999 would, the tribunal considers be disproportionate. Other than absence of relevance, the claimant has advanced no further real arguments against disclosure. No particularly sensitive medical issues have been referred to (in any event, those issues which could be viewed as sensitive, the claimant’s depression and his heavy drinking are already referred to in the disclosure given thus far) in support of the opposition to the application. Whilst there was discussion of limiting disclosure to lawyers, or any nominated medical expert , that has not been pressed on behalf of the claimant. To a large extent, the more sensitive elements of the claimant’s medical and personal history, including his heavy drinking, and the breakdown of his marriage, are already contained in the disclosure thus far. The claimant has not identified or suggested that there are any other (possibly unrelated) sensitive issues in his , as yet, undisclosed , medical history which he would not want to be known to his former employers, so the tribunal sees no reason to limit disclosure to legal or medical advisers, the respondent being aware of the limitations upon the use and dissemination of information received by way of disclosure in legal proceedings beyond the legitimate use for the purposes only of the proceedings.[29]Further, whilst it may be to prove a negative, the tribunal shares the respondent’s concerns that such disclosure as has been give thus far may be incomplete. That is because there appear to be some gaps in the records produced. Whilst his depressive condition is claimed to have started in , or was first diagnosed in 2010, entries in the records produced only go up to May 20111, and then re-commence (it seems, for the date is very unclear) in June 2015. The claimant’s absence record (page 38 of the bundle) shows absences in 2012, 2013 – in particular of 27 days, and 40 days, and 2014 – three periods totalling 14 days. None of the disclosed medical records relate to any of those periods. There may be nothing to disclose in these periods, but only a full record of consultations , treatments and referrals will demonstrate this.[30]Further, the letter from Dr Parveen (page 1 of the Bundle) addressed to “to whom it may concern) of 25 August 2016 states that the claimant had given the doctor permission to disclose “some” of the facts surrounding his recent health issues. That phraseology suggests that there has been some selection, or filtering , of what the doctor has been permitted to disclose.[31]Whilst it is appreciated that the Polkey plea has been raised by the respondent, and the burden rests upon that party, in a case such as this where the tribunal may be asked to rule upon the chances of the claimant being retained in his employment given his medical and attendance record, the tribunal accepts that the this disclosure does potentially relate to what will be issues in the case, and the claimant must give it. ii)The claimant’s disclosure generally.[32]Mr Wynne’s next application relates to the claimant’s disclosure generally. He contends that the claimant has further documents which are disclosable. In particular, he cites a diary which the claimant has apparently kept, and which is referred to in the[33]In reply Mr O’Neill did not really contest any further or wider “general” disclosure of the documents that the claimant may have. He was content to give disclosure of documents relating to four issues, disability, the final written warning, the dismissal and post – termination issues of mitigation, Polkey and benefits. The claimant had, it is noted , from the correspondence, applied for benefits in March, so one would expect some documentation in this regard. The tribunal’s ruling.[34]The tribunal agrees that the claimant should give further disclosure. It appreciates that he cannot give what he does not have, but the diary entries clearly exist, and should be disclosed, as should all other relevant documents. In relation to remedy these will include all communications with the DWP and other agencies on relation to benefits claimed or received, together with any documents relating to either the claimant’s attempts to find other work, or , if he has not done so, why he has not done so. iii)The applications to amend. a). A second protected act.[35]The original application before the tribunal was to amend the claims of victimisation. This has its origins in the claimant’s solicitors’ letter to the tribunal of 23 March 2017, in which they raised this issue, saying that it had arisen between the parties following the preliminary hearing on 13 February 2017. The parties had been directed to prepare a List of Issues for use in the next preliminary hearing, which was to have been 7 April 2017. The claimant had included, or proposed to include, not one protected act, but two. The first had been pleaded, it was accepted, as being a letter from the claimant’s solicitors to the respondent dated 14 October 2016.[36]In the draft List of Issues, however, the claimant’s solicitors had also included a further alleged protected act, namely “the communications from the claimant’s trade union at and/or after the appeal.”[37]In the correspondence the claimant’s solicitors stated that this had orally been stated in the preliminary hearing, but this was and remains contested by the respondent. Consequently, although they did not consider that the claimant needed to make any application to amend to include this further protected act, they did , and do, so in any event. It is opposed. Mr Wynne’s grounds for opposing are that it is a late application, when the claimant has been represented from the outset by professional representatives. It involves further lines of enquiry, as it will be necessary to enquire whether the alleged communication (which is only alleged to have been oral) was made in the appeal hearing. The respondent should not have to continually respond to claims that are being added “on the wing” as it were.[38]Mr O’Neill submitted that there is no prejudice to the respondent. He maintains that as this additional allegation was discussed at the previous preliminary hearing, the[39]The tribunal’s view is, firstly, there is need to amend the claim. The facts relied upon are not pleaded in the claim form. Quite what happened in the preliminary hearing is unclear, but what is clear is that no permission was granted at that time to add anything further to the facts pleaded in the ET1.[40]As to whether the amendment should be allowed, the tribunal was referred to and has considered the Selkent principles. In a sense this is not a new claim, in that the cause of action, victimisation, is the same, and the acts of victimisation alleged have not changed or been added to. What is sought to be added is a further protected act. The protected act is not the cause of action, part it is an essential component of it. It clearly is closely connected to the existing facts and claims pleaded, and is not wholly new. The reason why it was not previously included is, although not expressly stated, inadvertence on the part of the claimant’s advisers.[41]As ever, with amendments, a balance has to be struck, and the respective prejudice to each side considered. From the evidence that the tribunal has seen, and the fact that the respondent was likely to have to call the appeals officer in any event, there seems little or no prejudice to the respondents if they have to investigate this matter too. It is a matter of a couple of questions, one would have thought. That said, given that there was a solicitor’s letter which is conceded to have raised disability around this time in any event, a second protected disclosure may not add much, or even be necessary, but overall, given that this is still an early stage in the proceedings, which are not to be heard until December, the tribunal will allow this amendment. b).The further amendment to allege an alternative basis for the victimisation claims.[42]In the course of this hearing a further application to amend has arisen. Its genesis is a further draft List of Issues, prepared on behalf of the claimant, in which at para. 14 , under the heading “Victimisation” after the two protected acts , as they now are, are set out, there appears an alternative issue, as follows: “14. If the above are not considered to be protected acts for the purposes of section 27(1)(a) EqA 2010 did the Respondent believe that the Claimant had done or may do a protected act for the purposes of section 27(1)(b), EqA 2010?”[43]The respondent contends that this is a yet further amendment. Mr Wynne did not have full instructions upon it, and once it was clear that it was to be pursued by Mr O’Neill, sought and was granted permission to make further written submissions upon it. These were received on 4 May 2017, in a letter from the respondent’s solicitors of that date. The objections taken are that this is another, and wholly new allegation, not previously made, or indeed claimed to have been made, at any time prior to the preliminary hearing on 27[44]For the claimant Mr O’Neill had submitted that this was no more than re-labelling, it was an alternative that was open to the tribunal to find, based on the same facts in the event that the tribunal found that whilst there had been no protected act in fact, if the tribunal found that the respondent had acted as it did because it believed that the claimant had done or may do such an act, this alternative basis for finding victimisation should be open to it. There was no real prejudice to the respondent at this stage, and instructions could be taken so that the issue could be dealt with in the witness evidence. The hearing is not until December 2017, so there is ample time for this to be considered and dealt with by the respondent. Discussion and findings.[45]The tribunal’s view is that this issue raises somewhat fine principles of pleading which are rather out of place in the less formal setting of the tribunal’s rules of procedure than they might be in the more rarefied atmosphere of the CPR. Tribunals are essentially fact finding bodies, and purely “pleading points” are deprecated. In essence, the crucial purpose of the claim form and the response, and the particulars supplied under either of them, is that the other party knows the factual case that it has to meet. In the case of the victimisation claims in this case, that primary case is simple – the claimant alleges that he did two protected acts, and that, by reason of his having done so, he was subjected to unfavourable treatment. Whilst he had originally pleaded that he had actually done the protected acts, he now seeks to broaden his claims to add an alternative plea, to cover off the possibility that the tribunal may find that he had not in fact done any protected act, but that the respondent believed that he had done, or may do so.[46]This may appear somewhat esoteric, but the respondent complains that this is yet another instance of the claimant making new claims, at a late stage in the proceedings, which should not be permitted.[47]The first question is whether this alternative way of putting his victimisation claims requires to be “pleaded” at all. On one view, it could be said that it does not, as the provision creating the cause of action of victimisation , s.27 has one sub - section, s.27(1) , with two further sub-sections, which provide two ways of the tort being committed, the one,(a) on the basis that the claimant had done a protected act , and the other(b) on the basis that the respondent believed that the claimant had done, or may do, a protected act. That could be seen as creating one cause of action , and hence it could argued that it would be open to a tribunal, without the point being expressly pleaded, to find the alternative basis for the tort , if not satisfied that the claimant had not actually done a protected act, but the respondent believed that he done, or may do one.[48]Against that, one has to bear in mind that if the claimant establishes that he has done a protected act, the burden of proof, under s.136, is reversed. The same is presumably true if the claimant establishes that the respondent had the necessary belief[49]Thus, it is still necessary, if a claimant is relying on either limb of s.27(1) , for him to allege what act he had either done, or he alleges that the respondent believed he had done, or was likely to do.[50]The tribunal’s view, therefore is that if a claimant is to rely upon the second limb of s.27(1) , the respondent’s belief, that belief does need to be specifically pleaded. The tribunal does not consider that it can make such a finding as some form of “alternative verdict”. To that end, the tribunal considers that the claimant does need to amend to add this alternative head of claim, if it is to be relied upon.[51]The question therefore is whether the tribunal should grant this amendment. Again the same Selkent principles discussed above apply. Again this is a late application, with no real explanation advanced for it, other than omission on the part of the claimant’s advisers of this potential head of claim from the original claim form.
Conclusions
[52]The respondent’s objection , apart from lateness of the application, is that this opens another avenue of enquiry for the respondent’s witnesses, who will now have to be asked about what they believed. This will cause delay, and increase expense.[53]The tribunal agrees that this amendment should not be allowed. One of the relevant principles to be considered under Selkent is the manner and timing of the application. It is late, and follows another application, itself objected to as late, and for poor reason, albeit allowed for the reasons above. This amendment, however, is itself poorly pleaded, as it does not specify what protected act or acts it is alleged the respondent (or indeed precisely who of the respondent) believed the claimant had done, or may do. Further, it was an application effectively only made, with no prior notification, by way of proposed inclusion by the claimant in the draft List of Issues. Whilst that may be consistent with the claimant’s view that there was no need to seek to amend at all, it does contrast with the more open approach of raising with an opponent a potentially new issue , and putting the opponent on notice of this potential issue as soon as possible.[54]The tribunal therefore considers that this is indeed an instance of the claimant casting around for alternative bases for his claims, which should not be permitted. The tribunal is also influenced in this decision by the fact that the claimant has a perfectly adequate, and already pleaded, victimisation claim. Denying the amendment thus deprives him of little. As a final consolation, however, given that amendment is possible at any time in proceedings, were it to emerge on the evidence in the final hearing (or before) that the claimant had not in fact done any protected act, but someone on behalf of the respondents believed that he had, or may do so, so as to raise the prospect of the claimant, at least, reversing the burden of proof, or of succeeding in such a claim, the tribunal is unlikely to prevent the claimant at that stage from advancing such a claim on a “pure pleading” point, and it could always be reconsidered then.[55]At present, however, the tribunal considers that to allow this further amendment would be allow a further , somewhat speculative, and probably unnecessary head of claim which will delay and complicate further claims which can and should be progressed in the form that the tribunal has now sanctioned, and no other. Further case management, and next preliminary hearing.[56]Some further case management was possible, and the claimant agreed to serve a Schedule of Loss. It was recognised that another preliminary hearing was likely to be necessary. The claims cannot progress very much further whilst the position on disability remains unclear, and there is already a suggestion that the 5 day hearing will need to be increased to 8 days. On that basis, the parties were asked to provide their availability for a further preliminary hearing (which can probably be by telephone) at which any remaining case management and listing issues can be resolved. Whilst it had been intended to reserve this case to Employment Judge Holmes, it will be more easily re-listed for a preliminary hearing if it is released, and it accordingly is. Employment Judge Holmes Dated : 13 June 2017
discussion.
[1]By a judgment promulgated on 21 August 2018 the claimant succeeded in his claim for unfair dismissal and the matter was listed for remedy today. Issues The issues in this case are:- Basic Award[3]The claimant gave evidence on his own behalf and there were no other witnesses. Additional documents were provided, in particular an email and job description for the role with Air Products. There was also references made by the claimant in evidence regarding his appointment diary for his barber’s business but this had not been disclosed in advance and it was not entered into evidence. During the hearing the claimant’s solicitor also obtained and produced an altered copy of a letter from the claimant’s accountant which was in the bundle. Tribunal’s Findings of Fact[4]The Tribunal’s findings of fact are as follows:-4.1 The claimant was dismissed by the respondent on 5 August 2016 and his appeal failed on 9 September 2016.4.2 The claimant subsequently suffered an episode of depression. He had not had an episode since September 2015. Following his dismissal, he claimed ESA (a disability based benefit) until 31 March4.3 He did not apply for any jobs except that towards the end of 2016 he applied for a job with Air Products, basically the respondent’s only rival which was also in the same locality. The additional documents disclosed included the following email from Mr Abbott, On Site[5]We note that the we had no explanations regarding why the claimant did not hear from Air Products until August 2017 if in fact he had sent his CV off in December 2016. The claimant did say however that he was wary of working in a management hierarchy after what had happened to him as he perceived his problems at BOC as connected to managers taking a dislike to him. He also felt he could end up dealing with a company like the respondent who simply did not seem to believe that he had a medical problem and would go to great lengths to try and show this.[6]The claimant also in answers to questions and in response to the fact that the respondents had put in the bundle many jobs which required fork lift truck qualifications stated that he did not have a fork lift truck qualification. However, the claimant was not aware of this until he made further enquiries in connection with this hearing and discovered (although he had no corroborative evidence) that the fork lift truck qualification he had from the respondents was in house and was not a generic fork lift truck qualification that he could take to other employers. He did not know this earlier as in his job centre commitment statement dated 12 June 2017 he stated that he was looking for FLT work and had the qualification.[7]The claimant did not say that he did not follow up the Air Products job because he did not have a FLT license but partly because he did not want to put himself into, in effect, another managerial hierarchy like the respondent’s.[8]In addition, the claimant said that because the wage was so low, certainly in the initial period and they were only offering temporary work he would lose his benefits. It would also take him away from trying to establish himself as a barber which process he had begun in April 2018. However, the email from Mr Abbott did not say how temporary the position was and the impression was that it was highly[9]In relation to the claimant’s barbering the claimant trained to be a barber in April 2017 at a cost of £1,095 for the training course which he borrowed. He did do some work at two places Moorside Barbers and Dukes. The claimant only earnt at these roles £570 and he advised that he was owed £450 amount unpaid from Dukes but had not made any effort to recover this money.[10]Of further note in relation to the claimant’s job centre commitment form is the fact that the claimant indicated he was willing to travel for work for 90 minutes and that he had suitable skills for driving jobs, whereas in evidence he said he did not want his travel to work time to be more than when he worked for the respondent which was 10 minutes.[11]Following working for these two enterprises the claimant did not work again until December 2017 when he was able to secure a lease on a shop in Swinton. The lease began on 9 February but he started on 1 February paying £100 a week in rent. He initially only worked two days a week. From April he was full time.[12]The claimant produced bank statements which showed some transactions but he said he paid his rent cash and that not all his cash payments and receipts were recorded in his bank statement but his appointment book indicated how many haircuts etc he had performed and this would match the income he had declared.[13]The claimant provided a letter to his solicitor from his accountant setting out his earnings as a barber however this was ambiguous and during the course of the hearing the claimant’s solicitor rang the accountant and obtained a “corrected letter”. The first letter said “I can confirm Mr Lee Banham went self-employed in February 2018 as a Barber, from February to 31 March 2018 Lee made a net profit of £1,460 as per his SSA302 which has been agreed by HMRC. At your request I have detailed Lee’s income and expenses for the period 1 April 2018 to 28 February 2019 from Lee’s information he gave me. Income £6,972.50 Expenses £5,272.07 Current net profit £1,700.43 Lee’s main expenses is the rent of his chair which is £100 a week, on top of that he also has expenses for material and signage and advertising. The second letter said:- “I can confirm Mr Lee Banham went self-employed in February 2018 as a Barber, prior to this he received self-employed income whilst training with a shop. The previous letter was worded incorrectly. For the year ending 5th[14]Regarding the claimant’s work the respondent cast doubt on whether the income he had recorded was correct as it was agreed that most payments for haircuts would be in cash. Further from the first letter it appeared he had made a large profit in two months of barbering when he was only working 2 days a week and then much less when he was full time. However, we find that the claimant’s account of what he earnt was truthful. The claimant said this was accounted for by rent and obviously implication from the second letter from the Accountant, this accounted for all earnings received in the tax year 2017 to 2018.which would include earnings from Moorside and Dukes. The claimant also pointed out he had much higher expenses for setting up the shop in terms of advertising signs, and supplies. He accepted that he was not very busy now working full time from April 2018 but he was hopeful that business would increase or he would consider moving to a shop with greater footfall. He believed his potential turnover in barbering could be £50000 a year.[15]In respect of other matters. the claimant claimed that salary rises of 2% a year as stated by the respondent were inaccurate and that a higher salary rises had been awarded. In the claimant’s Schedule of Loss, he argued that the average net wage at the respondent was as follows: 31 October 2016 to 31 August 2017£637.211 September 2017 to 31 August 2018£650.481 September 2018 to 7 May 2019£663.49[16]In relation to pension loss the claimant stated and it was not disputed that he was in a final salary pension scheme with BOC, his pension at dismissal was £7,973.64. Had he stayed with the respondent until retirement another 22 years at least it would have been £21,941.64. At this point in time his pension retirement projection was £9,063.13.[17]The respondent’s contribution to his pension was 20% which was relevant because the Tribunal had to decide if we award pension loss whether to award it on a simple or complex basis. This is referred to in the law section below.[18]The claimant also advised he had borrowed £40,000 from his parents and had borrowed from friends.[19]In relation to benefits the claimant received Employment Support Allowance of £73.10 to March 2017 and Job Seekers Allowance from April 2017 until April 2018. This was also paid at £73.10. The claimant received £42 in Working Tax Credits from the beginning of July 2018 until 17 November 2018. The claimant had also applied for Universal Credit and has been allocated £317.82 for housing benefit. He[20]The claimant also stated that most of the jobs the respondent had put forward would not benefit him financially, he would lose all his benefits including housing benefit. He received £400 approximately per month in housing benefit depending on his earnings and received a discount of £100 each month on his council tax, which equates to £500 per month. The claimant stated that it would not be financially viable to take a job on the level of salary indicated in the jobs referred to by the respondent. Most of the jobs the respondent put forward were on £10 per hour which would roughly be gross £3,200, net £1681 approximately. However, having made that calculation the claimant’s complaint (whether per se legitimate or not) that he could not afford to come off benefits appeared implausible and we do not accept it.[21]The claimant had not applied for any jobs since his dismissal other than as recorded above.[22]An issue also arose regarding length of service. The respondent produced a document recording the claimant’s periods of working for them which showed a three-month gap from the end of December 2000 to 18 April 2001 and accordingly submitted that any periods of employment before that should not count towards continuous employment. The claimant agreed with these records in tribunal. The respondent requested we review our original judgment and substitute the April 2001 date as the date for the beginning of the claimant’s employment. The Law Review Jurisdiction[23]Reconsideration of judgments is contained in rule 70 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It says that: “(70) A Tribunal may, either on its own initiative or on the replication of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration the decision may be confirmed, varied or revoked. If it is revoked it may be taken again. (71) Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing within 14 days of the date on which the written record or other written communication of the original decision was sent to the parties, or within 14 days of the date when the written reasons were sent out (if later) and shall set out why reconsideration of the original decision is necessary. Process[24]In an unfair dismissal case a claimant is entitled to at least two awards, one is the basic award Section 118(1)(a) of the Employment Rights Act 1996 and secondly a compensatory award Section 118(1)(b) intended to compensate the employee for financial loss suffered as a result of the unfair dismissal. This is subject to a current maximum of £86444 (not including the basic award) or one year’s gross pay whichever is the lower. Basic Award[25]Basic award is calculated in units of a weeks’ pay as defined in Section 220 to 229 of the Employment Rights Act 1996 and is dependent on the employee’s age and length of continuous service. The basic award in this case was agreed save for whether the claimant’s service began from 14 July 1999 or the 18 April 2001 and whether pension contributions should be included in the calculation of basic pay[26]Section 123 of the 1996 Act requires an Employment Tribunal to have regard to the loss incurred by the employee as a result of the dismissal.[27]In 2003 the cap was introduced on unfair dismissals so that if a year’s salary is a lower amount than the statutory cap only a year’s salary will be applied. Section 124(1)(a) 1996 Act states that the statutory limit shall be the lower of - a maximum amount of £ 86444 as of today’s date - the product of 52 months multiplied by a week’s pay of the employee concerned There was an issue as to whether basic pay should include employer pension contributions. The case of University of Sunderland vs Droussou EAT 2017 established it does although this case is being appealed. The respondent reserved their position on this point.[28]There can be no double recovery and therefore the Tribunal should take into account any payments made by the employer to the employee - in this case the claimant was paid notice pay.[29]Compensatory award is divided into the following heads of compensation: -29.1 Immediate loss of earnings i.e. loss between dismissal and the hearing at which the Tribunal decides on compensation;29.2 Future loss of earnings i.e. estimated loss after the hearing;29.3 Expenses incurred as a consequence of the dismissal;29.4 Loss of statutory employment protection;29.5 Loss of pension rights. Recoupment Provisions[30]Under the Employment Protection (Recoupment of Benefits) Regulations 1996 an employer is required to deduct from any award made sums received by the employee for Job Seekers Allowance, income related employment and Support Allowance, Income Support or Universal Credit, the employer has to pay this amount to the Department of Work and Pensions in order that they can recoup social security payments, however in this case there was an issue as to whether other payments should be simply deducted from the award, in particular the respondent relied on a case Morgan’s -v- Alpha Plus Security Limited in this case the Tribunal had deducted the full amount of Incapacity Benefit that the claimant had received from their Compensatory Award. The EAT upheld this award on the grounds that if no deduction were made for receipt of benefits which would not have been paid had the applicant remained in employment and which were not recoverable the applicant[31]The claimant on the other hand quoted Savage -v- Saxena EAT 1998, the majority of the EAT in that case held that the starting point in assessing compensation was Section 123(1) which provides the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer. Under common law principles account must be taken of sums to which the injured party would not have been entitled had it not been for the injury, however the majority of the EAT thought that housing benefit did not fall within that rule because it was not sufficiently approximate to the loss sustained in consequence of the dismissal insofar as that loss is attributable to the employer’s actions. The payment of housing benefits results from the inability of the claimant to meet reasonable housing needs from his or her resources, it is paid in respective of the needs of the household, not the individual and in their view differed markedly from the Invalidity Benefit. In addition, it was noted that the 1987 Housing Benefit Regulations then in force contained provisions whereby housing benefit could be recovered where employees were awarded unfair dismissal compensation.[32]The parties could not advise us what the current situation is however it appears that the 2006 Regulations do refer similarly to unfair dismissal compensation, and therefore should not be taken into account by the Employment Tribunal when assessing unfair dismissal. The situation is now complicated by Universal Credit which includes different elements of benefits including recoupable and non-recoupable benefits, and therefore the Tribunal has to distinguish between the separate elements coming together to form Universal Credit.[33]In relation to the other principles to be applied to the compensatory award any earnings from new employment should be offset. The Tribunal must also assess future loss, this is obviously subject to some speculation and dependent on the evidence provided. Mitigation[34]An employer can argue in remedies hearing as they did here that a claimant has failed to properly mitigate their loss, the burden of proof is on the employer, Section 123(4) of the Employment Rights states:- “in ascertaining the loss, the Tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applied to damages recoverable under the common law of England and Wales ….”[35]In Savage -v- Saxina 1998 EAT as referred to above, the EAT also recommended a three-separate approach to mitigation: - (i) Identify what steps should have been taken by the claimant to mitigate his or her loss;[36]Therefore, the usual practice is to estimate a date on which the claimant should have obtained a job had they properly sought to mitigate their loss. Mitigation can be argued in relation to jobs that were suitable that the claimant failed to apply for or the failure to accept the job offered or as is also relevant here the change of an unreasonable change of career. Where an employee’s decision on a decision to embark for example on a course has been held to be unreasonable the Tribunal needs to judge when the employee ought to have obtained fresh employment at a similar level, Mullarkey -v- Up The Creek Limited EAT 1995. In Simrad Limited -v- Scott EAT 1997, the Tribunal had decided an employee acted reasonably in re-training as a Nurse, the EAT held however that her losses from the date she started her course were too remote to be attributable to the actions of the employer however this does not sit very easily with the Milarki approach in a situation where the employee’s decision is deemed to be reasonable.[37]In Software 2000 Limited -v- Andrew and Others 2007 EAT a number of principles were enunciated by the then President Mr Justice Elias which include - In assessing compensation for unfair dismissal, the Employment Tribunal must assess the lost flowing from that dismissal which will normally involve an assessment of how long the employee would have been employed but for the dismissal. - If the employer contends that the employee would or might have ceased to have been employed in any event had fair procedures been adopted the Tribunal must have regard to all the relevant evidence, including any evidence from the employee for example to the effect that he or she intended to retire in the near future. - There will be circumstances where the nature of the evidence for this purpose is so unreliable that the Tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been so riddled with uncertainty that no sensible prediction based on the evidence can properly be made, whether that is the position is a matter of impression judgment for the Tribunal. - However, the Tribunal must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation even if there are limits to the extent to which it can confidently predict what might have been; it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.[38]In relation to pension loss the Tribunal generally makes a separate calculation. Pension loss is generally claimed on the basis that given the current climate it is highly unlikely that an individual in a final salary scheme would be able to replicate that in another job as certainly most private sector companies have closed their final salary schemes. The period of compensation for pension loss can be longer than the period of compensation for loss of earnings as it may seem an individual could obtain another job but not that they could obtain another job with pension loss.[39]Recently, the Presidential guidance enunciated new principles in relation to pension loss dividing up two approaches, one is the simplified approach and the other is the complex approach or substantial loss approach. The Presidential guidance states in paragraph 4:- “insofar as loss of occupational pension rights are concerned the principles identified category of “simple cases” in such cases the Tribunal will exclusively use a contributions method to assess a claimant’s net pension loss, this method requires the Tribunal to aggregate the contributions that, but for the dismissal, the employer would have made to the claimant’s pension scheme during the period of loss that has been identified, this approach will invariably be adopted in cases where the claimant’s lost pension rights relate to a defined contribution scheme including a scheme into which the claimant was automatically enrolled, it will also be adopted in some cases where the lost pension rights relate to a defined benefits scheme, for example those cases where the period of loss relates to a relatively short period or where the application of the monetary cap on compensation or a very large withdrawal factor means it will be disproportionate to engage in complex analysis 2[40]Paragraph 5 states “the principles identify a category of complex cases, these are cases for which the contributions method is not suited, in general a case will be complex:- “If the claimant’s lost pension rights derive from a defined benefit scheme (including final salary schemes and CARE schemes) and the loss relates to a longer period). Complex cases include but are not limited to career loss cases.”[41]Generally speaking in respect of the substantial loss approach the guidelines advocate that the use of the substantial loss approach be restricted to those cases where the claimant was a long-standing employee in a stable job whose age meant he or she would be unlikely to looking to move. Further, from the guidance at 5.41 states:[43]The claimant submitted primarily that he would have continued working for the respondent for the rest of his career and that his earnings and pension loss should reflect the same subject to the statutory cap. He contested that he had failed to mitigate his loss as it was reasonable of him to decide to not apply for jobs that required fork lift truck licenses, the respondent had not produced jobs that were suitable which didn’t require fork lift truck license. He said it was reasonable to refuse to take the Air Products job given that for the first three or four months the salary would be so low that he would be worse off than on benefits and there was no guarantee that the job would last. He stated that it was reasonable to change tact to train as a Barber as the potential earnings were up to £50,000 a year gross. Respondent’s submissions[44]The respondent submitted that the claimant would have been dismissed by the respondent in any event because of his poor attendance record, his record when working for them and his failure to find new employment suggests that he would not have met the attendance expectations of the respondent had he continued to be employed. The respondent relied on the Tribunal’s judgment in this respect ( paragraphs 76 and 77, 83, 90 to 92, 143 to 148, 161, 162 and 165). They submitted that had his warning been extended by another three months, it was highly likely the claimant would have been absent again as he did have a pattern of being off sick immediately a warning expired. In addition, the claimant in his own evidence had stated that he did not wish to work in a managed situation anymore due to his experience at BOC which suggests that if he had not been absent due to illness there would have been incidents relating to his managed situation which would have led to him leaving. Whilst the claimant asserted he did not want to work in a managed environment there was no medical evidence to suggest his health would deteriorate if he did.[45]In addition, it was not reasonable of the claimant not to take a job because he would or thought he would end up potentially in a worse position than on benefits although it was not accepted this would be the case in any effect.[46]The respondents submitted that the claimant had a 50% chance of remaining employed by 22nd December 2016; a further 75% chance if he was employed at 22nd December 2016 of being dismissed within a warning period by 22nd March 2017; and a further 90% chance if he was employed at 22nd March 2017 of being dismissed by 22nd June 2017. After that his chance of being employed was zero.[47]The claimant had failed to mitigate his loss by choosing to train as a Barber and persist with the business which was not providing a reasonable amount of income and in fact he had found very little work prior to renting the Swinton shop. At[48]The claimant had also failed to mitigate his loss by refusing the August 2017 offer of employment for Air Products. This was unreasonable as the increase of full hourly rates would occur within three to four months and overtime was highly likely to be offered. In addition, this broke the clause of causation of any losses suffered by the claimant.[49]The claimant also failed to mitigate his loss by failing to search for alternative work, the claimant has not produced any evidence whatsoever of applying for any job. The claimant asserts that he did not have a full FLT license but he made no effort to obtain one. In relation to his documents for the jobcentre he did state that this was the type of job he could apply for and that he had an FLT qualification and therefore at the time he felt he could apply for jobs requiring an FLT qualification as he was unaware his FLT credentials were simply in house.[50]The respondents also were concerned that the claimant’s financial information was incomplete or inaccurate. They pointed out that his bank statements did not record the £100 per week cost of hiring his room (the claimant says this was paid cash). There is no record of cash payments which were received from his business, there was no record of the income from Moorside or Dukes, the accountant’s profits records had to be amended in the course of the Tribunal which was very unreliable. He stated that there was money which would not show in his bank account, the respondent asserted that the claimant was running a cash business where much of the cash did not go through his account, and therefore they submitted that on the balance of probabilities it was likely he was making a lot more money than he asserted. In addition, the claimant ought to give credit for ESA, housing and Council Tax allowance.[51]The respondents submitted the simplified pension loss should apply on the basis they given that he would have been likely to have been dismissed in any event after a short period. Conclusions[52]We find that the claimant on the balance of probabilities was unlikely to have continued in employment with the respondent for more than twelve months. We find this on the basis of findings we made in our previous decision that the claimant had a history of being absent due to sickness as soon as a warning had expired. Therefore we find that had he not been dismissed on 5 August 2016 but instead the respondent extended his warning by another three months we find that it is likely he would have survived that extension but would have been absent due to sickness again fairly soon thereafter. Following which the respondent would have been justified in following a truncated procedure, as indeed they had done to some extent originally and which we had deemed fair. In relation to if the respondent had reverted to their original plan of having an attendance target we find that on the balance of probabilities given the claimant’s history he would not have met that target. Mitigation[53]We find that the claimant failed to mitigate his loss in refusing to take the Air Products job in August 2017. However, by this stage we would have found the claimant would have been fairly dismissed by the respondents in any event. However, if we are wrong on that it is a relevant issue. We do not think it is reasonable for the claimant to refuse to take this job for financial reasons as he would have soon have been earning a reasonable amount. In relation to the initial four months at £8 an hour this would have been roughly £320 a week and we do not believe this was less than he would have been receiving in benefits.[54]In addition, in evidence the claimant stated that he did not wish to put himself back in a managed position given his experience at BOC, we find this was utterly unreasonable of the claimant. Firstly, his perception we find was erroneous - on the basis of our experience and the evidence - management at BOC were not ‘out to get him’, they were simply responding to his absence and attempting to manage it within their procedures. Even if were true there was no reasonable basis for assuming Air Products would be the same.[55]Finally, being in a managed position is the situation most employees are in (it is virtually synonymous with being an employee) and if an individual concludes that type of employment is not for them that is a personal choice which renders losses arising from that choice too remote to claim.[56]In addition, the claimant failed to mitigate his loss by applying for no jobs other than Air Products and the barbering placements. His jobcentre commitment form indicated that his depression was no bar to obtaining work although he did say he would prefer to work alone he had no evidence that working with others or in a managerial hierarchy would affect his mental health.[57]Further, the claimant said he did not want to travel further than he travelled to BOC which was ten minutes, we find that unreasonable criteria for the claimant to adopt in looking for other jobs particularly as his job centre commitment form said he was prepared to travel 90 minutes a day which is a reasonable stipulation in or view but in event proved irrelevant as the claimant did not look for other jobs.[58]Finally, in relation to the sample jobs provided by the respondent which required an FLT licence we find whilst these were not contemporaneous they were a likely indication of the jobs which would have been available throughout the period. We find it was unreasonable of the claimant never to have made any enquiries regarding obtaining an FLT license and in fact he was not aware he did not have a transferable FLT license until much later on following his dismissal yet still did not apply for any jobs requiring FLT qualifications. Further Failure to Mitigate[59]The claimant also we find made a reasonable decision in seeking to acquire a new skill of barbering but failed to mitigate his loss in pursuing it sufficiently vigorously earning only £1,320 April to September 2017 and providing no evidence of seeking employment with any other barbers in a reasonable travelling distance of his home address. Further, he has chosen to now become self-employed renting his own shop, he accepts it is not in a good position and one consequence of that is limited footfall and earnings, that is the claimant’s choice and represents a failure to[60]In our view the case law regarding housing benefit is clear, housing benefit is not to be deducted because it is recoverable directly by the relevant agency and therefore we would not deduct housing benefit. Calculation of a weeks pay Employer’s pension contributions clearly on the current law should be included in the calculation of a week’s wage. Pension Loss[61]Regarding whether to adopt the simplified or the substantial loss approach we have adopted the simplified approach given that we found the claimant would not have stayed in the respondent’s employment for more than one further year. Basic Award[62]In respect of the claimant’s starting date we review our original award on the basis that the claimant agreed in evidence that he did not start working for the respondent continuously until the 18th April 2001 as he agreed he had had a three month break prior to that which broke continuity. Accordingly, his basic award is to be recalculated in the light of reduced service.[63]We set out our award below, recoupment does apply as the claimant received JSA from 7 March 2017 which is within the period we have awarded the claimant his salary losses. Basic Award £479 x 16 (based on service from April 2001) 7664.00 Compensatory award 31st October 2016 to 5th August 2017 @ £637.72 net x 40 weeks 25508.80 Less earnings in the same period 24938.80 Dukes and Moorside £570 (note other earnings are outside the period we awarded losses) Loss of statutory rights 500.00[64]Grossing up of the claimant’s claim is required as out with the basic award the losses awarded are over £30,000 by a sum of £2,104. We propose to gross this amount up at the marginal tax rate of 20% which gives a new figure of £2,524.80 i.e. an additional amount of £410.80, therefore after the grossing up the claimant’s total compensatory award is £32,515.20. We have no submissions on grossing up as obviously at the time of the hearing the claimant and respondent would be unaware of what we intended to award.[65]As the award is below the statutory cap and the amount of the claimant’s annual gross salary which we have calculated as £43,327.44 the award can be made in full.[66]The total overall award is £40,179.20 Recoupment[67]The prescribed element is £24,938.80 plus £6,665.60 plus grossed up amount of £410.80 i.e. £32,015.20[68]The prescribed period is 31 October 2016 to 5 August 2017[69]The excess of the total award over the prescribed award is £8164 _____________________________ Employment Judge Feeney Date: 5 June 2019[1]By a Judgment dated 5 June 2019 the Tribunal awarded the claimant £40,179.20 in respect of his unfair dismissal claim. His disability claim having not succeeded. His representatives wrote to the Tribunal on 24 June 2019 requesting that the Tribunal address and correct two matters as follows.(i) In relation to his cost of retraining as a Barber the claimant had sought £1,095 for this, but the Tribunal failed to deal with this in its judgment; and(ii) That the Tribunal was incorrect in its calculation on grossing up as it had not included the basic award when undertaking the grossing up calculation.
Issues
[2]The respondent replied on 28 June and stated that they objected to these changes on the basis that a friend had covered the advance payment of the course fees and there was no evidence that the claimant had to repay his friend for that barbering course and he had not produced any evidence to that effect. In respect of the basic award the respondent commended a broad-brush approach to this and submitted that the Tribunal should leave the award as it was. However if they were minded to take a different approach that they Case No. 2405152/16 2 should reconsider the use of the 20% marginal tax rate as there was no evidence that the claimant would have actually used his tax-free allowance that year due to his low earnings and the failure of his business to flourish in particular.[3]Unfortunately, the file was then misplaced at the Tribunal and it took some time to obtain the relevant documents again from the parties. Following this the Judge indicated that she would consider the reconsideration, however, it was clear it would have to be reconsidered with the full panel who had heard the liability and remedy hearing. Subsequently, the pandemic interfered with the Tribunal’s plan and smooth running and it has also proved difficult to deal with day to day enquiries whilst Judges are not present in the Tribunal’s premises but are working from home. Accordingly, and unfortunately it has only just been now that we have been able to arrange a reconsideration hearing by CVP.[4]The parties agreed that the matter could be decided on the basis of submissions and the parties themselves did not attend. Law[5]Reconsideration of judgments is contained in rule 70 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. It says that: “(70) A Tribunal may, either on its own initiative or on the replication of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration the decision may be confirmed, varied or revoked. If it is revoked it may be taken again. (71) Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing within 14 days of the date on which the written record or other written communication of the original decision was sent to the parties, or within 14 days of the date when the written reasons were sent out (if later) and shall set out why reconsideration of the original decision is necessary. Process (72) An Employment Judge shall consider any application made under rule 71:(i) If the Judge considers there is no reasonable prospect of the original decision being varied or revoked the application shall be refused and the Tribunal shall inform the parties of that refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. Case No. 2405152/16 3(ii) If the application has not been refused under paragraph (i) the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (i), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further representations.(iii) Where practicable the consideration under paragraph (i) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full Tribunal which made it, and any reconsideration under paragraph (ii) shall be made by the Judge or, as the case may be, the full Tribunal which made the original which made the decision. Where that is not practicable the President, Vice President or Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full Tribunal, either shall direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.”[6]“We allowed the claimant’s request for reconsideration in view of the legitimate contentions they made which required the scrutiny of the panel which had made the original decision.[7]We do not repeat the law applying to the remedies applications in general as these are set out in the remedies decision. Conclusions Barbering course The claimant did provide a receipted invoice for this course of £1,095. The claimant’s evidence was that a friend had lent him this sum. The respondents suggest that there is no evidence the claimant’s friend has demanded repayment of this amount or has an expectation of repayment, however, we find it highly unlikely that a friend would lend this amount with no expectation of repayment, particularly in the situation where if they are a friend it will be well known to them that the claimant has succeeded in his Tribunal claim. Whilst the claimant has not provided any proof of this we think it is inherently likely that this would be the situation. As we found it was a reasonable course of conduct to retrain as a Barber at that point in time we award the claimant this additional amount which should be added to the compensatory award, increasing it from £32,104.40 to £33,199.40. Grossing up Case No. 2405152/16 4
Conclusions
[1]It is a correct contention of the claimant that for the purposes of grossing up the basic award is included before the grossing calculation is made, even though the grossing up only strictly applies to the compensatory award. In effect, the basic award contributes to the £30,000 tax free amount.[2]We refer to Harvey’s where an example is given as follows. “ An employee succeeds in an unfair dismissal claim, his basic award is £4,000, in calculating the compensatory award by reference to net losses the Employment Tribunal arrives at a starting figure of £45,000, the total notional award of £49,000 would be subject to tax under ITEPA 2003 Section 401 on the excess over £30,000, i.e. £19,000. Grossing up that £19,000 by a factor of 100 over 60 (for a 40% tax pay brackets will give £31,667 to be added to the tax-free slice of £30,000). A notional figure of £61,667. £4,000 of this is the basic award, the balance of £57,667 forms a basis for the calculation of a compensatory award and includes an element of grossing up, attributable to the basic award. The actual compensatory award applicable at the relevant effective date of termination is however capped at, for example, £55,000 so the employee is awarded a total of £59,000 rather than the £61,667 of which £29,000 will be subject to tax under ITEPA 2003.”[3]In the claimant’s case the entire payment has to be aggregated. This is partly dependent on our finding on the barbering costs which we set out above. As we have awarded the claimant his barbering training costs this increass the compensatory award from £32,104.40 to £33,199.40. Accordingly, the basic award of £7,664 should be added to this before the £30,000 exemption is deducted. Once this is deducted this leaves the figure of £13,579.25. The grossing up figure being £2,715.85. When the £30,000 is added back in and the basic award this brings the award to £43,579.25.[4]Therefore, the corrected award is as follows.(i) Cost of retraining £ 1,095.00(ii) Basic Award £ 7,664.00(iii) Compensatory Award £35,915.25(iv) Prescribed element is now £35,415.25 Total £43,579.25 The prescribed period is 31 October 2016 to 5 August 2017 and the excess of the total award over the prescribed award is £8,164.