Mr L Riley-Heenan v Safety-Kleen UK Ltd: 2600413/2021
JUDGMENT
UPON HEARING from the claimant in person and Counsel for the respondent, AND UPON considering the evidence IT IS ORDERED THAT[1]The claim for direct discrimination because of race fails and is dismissed.[2]The respondent constructively and unfairly dismissed the claimant.[3]The respondent must pay to the claimant the following: 3.1. A basic award agreed in the sum of £2,361.46, 3.2. A compensatory award made of the following sums: 3.2.1. For loss of statutory rights, the sum of £500, and 3.2.2. For loss of earnings for the period 23 February 2020 to 14 June 2020 (“the prescribed period”) the sum of £4,941.02 (“the prescribed element”).[4]For the purposes of the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (as amended), the total award is £7,802.48 and the balance (being the total award less the prescribed element in relation to the prescribed period set out above) is £2,861.46. Case No 2600413/2021 Page 2 of 2REASONS
[1]The respondent seeks to have the basic award reconsidered, as ordered to be paid in paragraph 3.1 of the judgment. It seeks to argue that the judgment awards a basic award to the claimant in respect of his notice pay. The respondent then argues that: “It is the Respondent’s belief that at the termination date, by virtue of the Tribunal’s finding that the Claimant was unfairly dismissed, the Claimant was entitled to his statutory notice pay. He did not serve this notice period and as such, there should be a Post-Employment Notice Pay (PENP) liability applied to the award. The Respondent is of the view that the basic award is PENP and as such should be subject to deductions because any part of the damages payment subject to the PENP rules, or otherwise subject to tax, should be grossed up (by a figure which represents notional tax) to take account of the employee's liability for tax. This is based on of the principle laid down in Shove v Downs Surgical Ltd [1984] ICR 532.”[2]The Tribunal considers the argument misguided. Case No 2600413.2021 Page 2 of 3[3]The Tribunal notes that: 3.1. The respondent conceded at the hearing that the only potentially fair reason for which it dismissed the clamant was “some other substantial reason”. The original argument that the dismissal was redundancy was abandoned and so with it any argument that the basic award be set off against the redundancy pay; 3.2. The basic award and total award is below £30,000 and so not liable to tax; 3.3. There is no authority cited for the proposition that a basic award is PENP or any other form of notice pay, and the Tribunal is unaware of any; 3.4. The basic award compensates for loss of job security and the fact and manner of dismissal, not lost earnings or lost potential earnings. The latter is the subject of the compensatory award. 3.5. The basic award has been calculated in accordance with statute, and was agreed between the parties; 3.6. There is no provision that the Tribunal can see in the Employment Rights Act 1996 section 122 to reduce the basic award as alleged, or any other provision elsewhere in the statute outside of protected disclosure legislation, which is not applicable here. No statutory provision has been cited by the respondent to support its contention that such a deduction is legally possible, even if the argument were sound. The Tribunal notes that Reductions in the basic award can only be made where expressly permitted by statute: Cadbury Ltd v Doddington [1977] ICR 982 EAT. 3.7. The Tribunal has not actually awarded any notice pay to the claimant; 3.8. Properly read, the obiter comments in Shove (especially at 543B-C) distinguishes between basic and compensatory awards and what can be set off under different heads. It makes clear basic awards cannot be set off against consequential damages. This makes sense on the basis that basic awards compensate for loss of job security, not loss of income.[4]The argument advanced therefore conflates compensation or damages for notice pay and lost earnings with compensation for loss of job security. The argument is flawed. No statutory provision is advanced that would empower the Tribunal to make the deduction or set-off asked for anyway. The Tribunal is unaware of any. Therefore, there is no prospect of variation or revocation. Case No 2600413.2021 Page 3 of 3