Mr A Korn, counselClaimantMr P Sangha, counsel FIRST REMEDY JUDGMENT The unanimous judgment of the Tribunal is as follows: 1. The respondent is ordered to pay to the claimant a basic award of £7,180.80.Respondent
Before
Employment Judge AyreDate 19 June 2023
REASONS
[1]In a judgment sent to the parties on 13 April 2023 the Tribunal found that the claimant was unfairly dismissed but contributed to his dismissal by 45% so that the basic and compensatory awards should be reduced by 45%. The claimant’s claims for disability related harassment were dismissed.[2]The case was listed for a Remedy Hearing today and Case Management Orders were made to prepare the case for today’s hearing. The Proceedings[3]There was an agreed remedy bundle running to 211 pages. The parties also wished to refer to documents in the original bundle used at the liability hearing. The claimant gave evidence and had prepared a witness statement. Mr Korn prepared a written skeleton argument for which we are grateful.[4]At the start of today’s hearing, we discussed the issues that would fall to be determined. It became evident that there were a large number of areas of dispute between the parties, and very little agreement. We gave the parties, both of whom had the benefit of representation by experienced counsel, time to try and agree the issues, but they were unable to do so.[5]The only issues that were agreed were:a. The calculation of the basic award which, after a 45% reduction for contributory conduct, came out at £7,180.80;b. The amount to be awarded for loss of statutory rights; andc. The amounts claimed by the claimant for loss of shopping discount and gym membership.[6]The Tribunal was concerned that there may not be sufficient time to deal with all of the issues in the 3 hours allocated for the hearing. It appeared that, notwithstanding the Case Management Orders that had been made, the parties had left preparation for today’s hearing until the last minute. The respondent indicated that it had only received the claimant’s remedy witness statement two days before the hearing and had received four different Schedules of Loss.[7]There were discrepancies between the amounts claimed in the latest Schedule of Loss and in the claimant’s witness statement. The respondent’s position on some issues had also changed. For example, in the Counter Schedule of Loss the respondent appeared to agree with the claimant’s figure for loss of sharesave benefit, but during the hearing Mr Sangha indicated that it was not agreed.[8]In light of the state of preparation and the number of issues that fell to be determined, it was the unanimous decision of the Tribunal that we would deal today with the claimant’s application for reinstatement or reengagement and make an order for the payment of the basic award, but that all other remedy issues would have to be determined at another hearing.[9]A one day remedy hearing was fixed by agreement with the parties and Case Management Orders have been made separately to prepare the case for that hearing and avoid the difficulties that have been experienced today.
Findings of Fact
[10]We make the following findings of fact on a unanimous basis.[11]The claimant gave evidence today that he did not believe that trust and confidence between him and the respondent had broken down irretrievably. His remedy witness statement also said however that his mental health had been severely impacted by what happened to him at work, to the extent that he had no alternative but to seek medical advice and was prescribed anti-depressants and counselling.[12]The claimant’s evidence, which we accept, is that he found it extremely difficult to carry on after the way in which the respondent’s management accepted Adrian Stretton’s account without attempting to investigate the mitigation that he put forward. He has suffered from poor mental health and continues to receive treatment for that.[13]Even now, the claimant finds it very difficult to even drive past his former place of work.[14]It is clear from his evidence to the Tribunal at today’s remedy hearing that the claimant is still very upset by what happened to him at work, and resentful. He told the Tribunal that if the respondent had done its job properly he would not have been dismissed, and maintained that Adrian Stretton had been lying.[15]In his evidence to the liability hearing (paragraph 19 of his witness statement for that hearing) the claimant said that from December 2019 to March 2021 ASDA had been complicit in allowing him to suffer continuous abuse and harassment in the workplace on a daily basis whilst clearly being aware that it was taking place. His statement also said that there had been a ‘clear pattern of targeted victimisation’ and that the respondent had treated him with indifference and insouciance.[16]The claimant gave evidence to the liability hearing that what happened to him at work led to him having a lack of confidence and trust in the management that should have protected him whilst he was employed.[17]During today’s hearing the claimant said that the reference to a lack of confidence and trust was in relation to the local management at the depot where he worked, and Paul Statham the dismissing manager in particular. He said that his issues were not with the company, and that the general manager and shift manager had been replaced since he left. He also referred however to Adrian Stretton having lied, and to Liam Hough having failed to carry out any investigation. Both Mr Stretton and Mr Hough are still employed by the respondent. The Law Remedies for unfair dismissal
The Law
[18]Section 112 of the Employment Rights Act 1996 (“the ERA”) sets out the remedies that can be awarded for unfair dismissal: “(1) This section applies where, on a complaint under section 111, an employment tribunal finds that the grounds of the complaint are wellfounded. (2) The tribunal shall –(a) explain to the complainant what orders may be made under section 113 and in what circumstances they may be made, and(b) ask him whether he wishes the tribunal to make such an order. (3) If the complainant expresses such a wish, the tribunal may make an order under section 113. (4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 126) to be paid by the employer to the employee.”[19]The following are the relevant provisions of the ERA relating to reinstatement and re-engagement: “113 The orders An order under this section may be –(a) an order for reinstatement (in accordance with section 114), or(b) an order for re-engagement (in accordance with section 115) as the tribunal may decide. 114 Order for reinstatement (1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed…. 115 Order for re-engagement (1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment… 116 Choice of order and its terms (1) In exercising its discretion under section 113 the tribunal shall first consider whether to make an order for reinstatement and in so doing shall take into account – (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement. (2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms. (3) In so doing the tribunal shall take into account – (a) any wish expressed by the complainant as to the nature of the order to be made, (b) whether it is practicable for the employer (or a successor or an associated employer) to comply with an order for re- engagement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re- engagement and (if so) on what terms….”[20]When considering whether to order reinstatement or re-engagement, the most important factor for the Tribunal to consider is whether it would be practicable to make such an order. That question is one of fact. It has been held that Tribunals should take a ‘common sense’ approach to the question of practicability (Meridian v Gomersall and anor [1977] ICR 597 EAT) and that in order to be practicable, an order must be capable of being carried into effect with success (Coleman and anor v Magnet joinery Ltd [1975] ICR 46 CA).[21]In First Glasgow Ltd v Robertson EATS 0052/11 the EAT held that the Tribunal was wrong, when deciding to make an order for reinstatement, to take account of the fact that the employer did not lead evidence or even make submissions on the question of practicability. The EAT found that there is no statutory presumption of practicability and no burden on the respondent at the stage when the Tribunal is considering whether to make an order, to prove that reinstatement would not be practicable.[22]Although contributory conduct must be taken into account by the Tribunal when deciding whether to make an order for reinstatement or re-engagement, a finding of contributory conduct, even substantial, is not a bar to either reinstatement or re-engagement.[23]The personal relationship between the claimant and his former colleagues is a relevant factor when deciding whether it would be practicable to order reinstatement or re-engagement. In addition, a breakdown of trust and confidence between employer and employee may render reinstatement or re-engagement impracticable (Wood Group Heavy Industrial Turbins Ltd v Crossan [1998] IRLR 680 and Northman v London Borough of Barnet (No.2) [1980] IRLR 65).[24]In Kelly v PGA European Tour 2021 EWCA Civ 559 Lord Justice Underhill suggested that the words ‘trust and confidence’ in the context of reinstatement or re-engagement should be given a common sense interpretation, so that it may not be practicable for an employee who has been dismissed to return to work for an employer that does not have confidence in him because of previous conduct or poor performance.[25]In cases involving dismissal for misconduct, a relevant consideration for the Tribunal when deciding whether to order reinstatement or reengagement is whether the respondent genuinely and rationally believed that the claimant was guilty of misconduct (Wood Group Heavy Industrial Turbins Ltd v Crossan [1998] IRLR 680 and United Lincolnshire Hospitals NHS Foundation Trust v Farren [2017] ICR 513 and approved in Kelly). Basic Award : Unfair dismissal[26]Section 118 of ERA the provides that: “(1) Where a tribunal makes an award of compensation for unfair dismissal…the award shall consist of –(a) A basic award (calculated in accordance with sections 119 to 122 and 126), and(b) A compensatory award (calculated in accordance with sections 123, 124, 124A and 126.”[27]Section 119 (1) of the ERA contains the provisions for calculating a basic award, which shall be done by: “(a) determining the period, ending with the effective date of termination, during which the employee has been continuously employed, (b) reckoning backwards from the end of that period the number of years of employment falling within that period, and (c) allowing the appropriate amount for each of those years of employment…”[28]The ‘appropriate amount’ is set out in section 119 (2) of the ERA as follows: “(a) one and a half weeks’ pay for a year of employment in which the employee was not below the age of forty-one, (b) one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and (c) half a week’s pay for a year of employment not within paragraph (a) or (b).” Submissions Claimant[29]Mr Korn submitted that there was no witness evidence from the respondent objecting to reinstatement or re-engagement or arguing that it was impracticable. The respondent’s case on the issue is therefore based entirely on counsel’s submissions which are speculative and mere assertions.[30]Mr Korn accepted that a fundamental loss of trust and confidence may be a reason for the Tribunal to conclude that reinstatement or reengagement is not practicable, but that cannot be merely asserted by counsel, the Tribunal needs to hear evidence on that issue.[31]One option, Mr Korn suggests, is for the Tribunal to make an exploratory order. The dismissal in this case was not merely procedurally, but also substantively unfair and, had the matter been properly investigated, a different conclusion may have been reached. Responsibility for that failing lies with the management at the time.[32]Mr Korn pointed out that the Tribunal found in its liability judgment that the claimant’s actions on 12 March (for which he was dismissed) were not premediated. Trust and confidence has not broken down. The claimant has a long and previously unblemished record with the respondent and had initially got on well with Adrian Stretton.[33]In light of the Tribunal’s conclusions in the liability judgment there are, Mr Korn submits, no good reasons not to order reinstatement or reengagement, and no reason to believe that there would be a repeat of the issues which led to the claimant’s dismissal were he to be reemployed by the respondent. Respondent[34]Mr Sangha submitted that it would not be practicable to order either reinstatement or re-engagement. The question is whether the respondent’s belief that there is a barrier to practicability is genuinely held and based on rationale grounds. He referred us to the case of Kelly v PGA European Tour 2021 EWCA Civ 559. This is, Mr Sangha says, a question of fact for the Tribunal based on a common sense assessment.[35]In Mr Sangha’s submissions, the evidence shows that reinstatement and re-engagement would not be practicable because:a. The parties need to be able to trust each other and the evidence shows that they no longer do.b. Of the nature of the conduct for which the claimant was dismissed – namely driving a Low Level Order Picker (“LLOP”) dangerously in a workplace in which health and safety are paramount; andc. The working relationship is likely to be very difficult, or even poisonous should the claimant return to work. The claimant made very serious harassment allegations about someone who is still employed, and it is hard to see how that is ‘water under the bridge’.
Conclusions
[36]The following conclusions are reached on a unanimous basis after considering carefully the evidence before the Tribunal, the legal principles summarised above, and the oral and written submissions of both parties.[37]The Tribunal considered very carefully the claimant’s application for reinstatement or re-engagement. In reaching our decision we have reminded ourselves that reinstatement or re-engagement are the primary remedies for unfair dismissal and that contributory conduct, even substantial, is not a bar to making either order.[38]We were concerned by the lack of evidence from the respondent on the question of practicability of reinstatement or re-engagement, but in light of the guidance of the EAT in In First Glasgow Ltd v Robertson EATS 0052/11 it does not follow that the failure to adduce such evidence should result in an order being made.[39]The primary consideration for the Tribunal remains whether reinstatement or re-engagement would be practicable, and we find on balance that neither would be practicable.[40]In our liability judgment we found that the claimant had deliberately driven his LLOP into the back of Adrian Stretton’s LLP, thereby causing damage to property belonging to the respondent. We also found that the claimant had driven into the aisle where Mr Stretton was working intending to confront Mr Stretton and swearing at him.[41]The claimant has continued to maintain throughout that what happened was an accident rather than deliberate.[42]The Tribunal found Mr Statham, who took the decision to dismiss the claimant, to be an honest and credible witness. He concluded (as referred to in our liability judgment) that the claimant had driven into Mr Stretton’s LLOP deliberately, and this is behaviour was inflammatory and a serious breach of health and safety. We found (paragraph 204) that Mr Statham considered the claimant’s actions to amount to gross misconduct and that that was a conclusion it was open for him to reach on the evidence before him. We also found that Mr Statham had reasonable grounds for believing that the claimant had committed gross misconduct (paragraph 207).[43]It is in our view clear from the findings in the liability judgment that the respondent’s trust and confidence in the claimant has broken down. The respondent genuinely and rationally believed that the claimant had committed gross misconduct.[44]We have then gone on to consider whether trust and confidence is also broken from the claimant’s perspective. We find that, based upon the claimant’s evidence to the Tribunal today, and the way in which he speaks about the respondent, that he is still very resentful towards Asda. Whilst that resentment may very well be justified, at least in part, it does affect the practicability of reinstatement and reengagement. We find on balance that the claimant does not have trust and confidence in the respondent and, from the way in which he speaks about Liam Hough and Adrian Stretton, do not accept that his lack of trust and confidence is limited to former members of management.[45]We are concerned about the practicability of putting the claimant back into a workplace where relationships broke down so badly, including with some members of staff who are still present in that workplace. We are particularly concerned about the potential working relationship between the claimant and Adrian Stretton and Liam Hough. We cannot ignore the fact that the claimant contributed substantially to his dismissal and, whilst that is not a bar to a reinstatement order, section 116(3)(c) requires the Tribunal to take it into account.[46]In light of the above, and of the contributory conduct by the claimant, it would not in our view be just to order that the claimant be re-engaged by the respondent, even on an exploratory basis as suggested by Mr Korn.[47]We have also considered carefully whether to order re-engagement to another place of work and whether some of the concerns above could be circumvented by such an order.[48]The claimant has not suggested any particular roles or other workplaces where he could work, nor submitted any evidence in support of a re-engagement order. We are also concerned about the lack of flexibility that was shown by the claimant previously when he was asked to work temporarily in another workplace and refused to do so. There is, quite simply, insufficient evidence before us to make a reengagement order. We are also of the view that the breakdown of trust and confidence between the parties makes such an order impracticable.[49]In the liability judgment the Tribunal also found that the claimant had refused a reasonable request by Mr Wright that he work on a temporary basis in another location and that the claimant was “being difficult and coming up with excuses because he did not want to work in the IDC” (paragraph 188).[50]We therefore find that neither a reinstatement nor a re-engagement order would be practicable. We have considered Mr Korn’s suggestion of an exploratory order but no evidence or submissions have been provided as to how such an order would make and, in light of this and of our findings above, we are not minded to make such an order.[51]We have therefore calculated the claimant’s losses taking into consideration 3% employer contributions by Pertemps and DHL from 21 July 2021 onwards. Period of Loss[52]Mr Korn submitted that loss should be calculated up to the date of the Second Remedy Hearing, 30 October 2023, and that the claimant should also be awarded 12 months’ future loss. Mr Sangha suggested that the claimant should only be awarded loss to the date of the First Remedy Hearing in June 2023, on the ground that it was just and equitable to ‘draw a line’ then.[53]We find that loss should be awarded, in accordance with normal principles, up to the date upon which the compensatory award was calculated, namely 18 December 2023. The mere fact that the Compensatory Award is calculated some considerable time after the dismissal (in this case approximately 2 years and 8 months later) is not in itself grounds for limiting the period of loss. In Gilham v Kent County Council [1986] IRLR 56, the EAT held that a Tribunal was entitled to compensate a successful claimant for the entire period up to the date of the remedy hearing, which in that case was two years and nine months.[54]We are satisfied, on the evidence before us, that the claimant has suffered loss up to the date upon which we calculated the Compensatory Awand that he should be compensated for that loss.[55]We are not persuaded however that there should be an award for future loss. It is now two years and eight months since the claimant’s dismissal and it would not, in our view, be just and equitable to award compensation for a longer period of loss. The claimant found alternative work very quickly and has remained employed in the new role ever since. His history of long periods of employment would suggest he is likely to remain employed by DHL for the foreseeable future.[56]The claimant has been successful both in obtaining permanent employment with DHL (having initially started as an agency worker) and in obtaining promotion in that role. There is the potential for him to be promoted again in the future and the possibility of pay rises with DHL.[57]In these circumstances there should, in our view, be no future loss awarded to the claimant. Returning to the words of the statute themselves, it would not be just and equitable in all of the circumstances to award any period of future loss. Back pay[58]The parties agree that the amount of the back pay the claimant would have received for the period prior to his dismissal was £740.22 net. They are however in dispute as to whether the claimant should be awarded that sum. The respondent’s position is that these losses do not arise out of the dismissal, but are, rather a claim for unlawful deduction from wages, and that there is no such claim before the Tribunal.[59]The claimant accepts that there is no claim for unlawful deduction from wages or breach of contract but submits that this sum would have been paid to the claimant had he remained in employment after 7 April 2021 and is therefore a compensable loss under section 123 of the ERA.[60]On balance we prefer the claimant’s arguments on this issue. The back pay is in respect of a pay rise awarded, with retrospect, for the period during which the claimant was employed by the respondent. If the claimant had not been dismissed, he would have been paid this award. The loss of the pay award therefore arises in consequence of the dismissal, and it would, in our view, be just and equitable to compensate the claimant for the loss of the award.[61]We therefore award the sum of £740.22 in respect of back pay. Eye tests[62]The parties agree that the claimant should be compensated for loss of eye tests in the sum of £66 – three years’ benefit at £22 a year. They do not agree however that the claimant should be compensated for the loss of this benefit for his wife, which he also put at £22 a year.[63]The claimant submitted that the loss of this benefit for the claimant’s wife falls within section 123(2)(a) and/or (b) of the ERA and that there is no reason why, as the benefit was extended to both the claimant and his wife, compensation for loss of the benefit should be limited to the claimant himself.[64]Mr Sangha argued that the Tribunal should award losses to the claimant only, and that his wife’s losses should be excluded.[65]There is, in our view, no reason why the loss of a benefit provided to the claimant’s wife should be excluded from the Compensatory Award. It is a loss arising in consequence of the dismissal, and it is clear that benefits can be included when calculating losses provided they are not one off payments but were received on a regular basis. There is no general rule that loss can only be awarded in respect of benefits received by the claimant himself. In Fox (Father for G Fox (Deceased)) v British Airways [2013] IRLR 812 the Court of Appeal held that the estate of a deceased claimant could recover compensation for the loss of a death in service benefit payment as part of unfair dismissal compensation.[66]We therefore award the total sum of £132 in respect of loss of the benefit of eye tests, comprising £66 for the claimant’s eye tests and £66 for the claimant’s wife’s eye tests. Physiotherapy[67]The claimant claims the sum of £594 in respect of physiotherapy costs[68]The respondent objects to an award in respect of these costs. Mr Sangha submits that this is not a cost that the respondent should be liable for, and that the claimant’s new employer should have made reasonable adjustments for the claimant such that the physiotherapy was not required.[69]Mr Korn submits that the claimant would not have been able to do his new job without the physiotherapy, and that the treatment was therefore a reasonable way of mitigating his loss. It cannot, he says, be unreasonable for the claimant to have obtained physiotherapy to support him in his new role.[70]Whilst we accept that the claimant did undertake physiotherapy on his knee, the evidence before us does not suggest that he would have been unable to obtain or retain his new employment without that physiotherapy. The claimant has had problems with his knee for a long time and had been able to do his role at the respondent without physiotherapy.[71]Any new employer would, of course, have been subject to make reasonable adjustments to take account of any disabilities, and there was no evidence before us to suggest that the claimant had asked Pertemps or DHL for reasonable adjustments but been refused. Similarly, there was no evidence to suggest that the claimant’s knee had got worse as a result of his work with Pertemps / DHL.[72]Importantly, the claimant did not begin the private physiotherapy until approximately one year after he began working at Pertemps / DHL. This suggests that he was able to perform his duties at Pertemps / DHL for a considerable period of time without the need for physiotherapy.[73]For these reasons it would not in our view be just and equitable to make an award in respect of the cost of physiotherapy incurred more than a year after the claimant was dismissed by the respondent. Uplift[74]The claimant seeks an uplift of 25% for the respondent’s failure to comply with the ACAS Code. Mr Korn submits that the respondent failed to comply with the Guidance accompanying the ACAS Code as well as the Code itself. In particular he submits that the respondent failed to carry out any necessary investigations to establish the facts of the case, failed to carry out the disciplinary investigation without unreasonable delay, and that the appeal had not been deal with impartially.[75]In considering the amount of the uplift, Mr Korn says, the Tribunal should take account of the size and administrative resources of the respondent.[76]Mr Sangha submits that the Guidance accompanying the Code complements the Code, but that when considering the amount of an uplift, the Tribunal should take account of the Code alone and not the Guidance. There has, he submits, been no failure to comply with the Code and there should, therefore, be no uplift.[77]In deciding whether to make an uplift, and if so how much, we have had regard to the guidance given by the EAT in Rentplus UK Limited v Coulson [2022] IRLR 664. In that case the EAT held that Tribunals should ask themselves the following questions:a. Is the claim one which raises a matter to which the ACAS Code applies:b. Has there been a failure to comply with the ACAS Code in relation to that matter?c. Was the failure to comply unreasonable?d. Is it just and equitable to award an uplift because of the ACAS Code and, if so, by what percentage, up to 25%?[78]The EAT also found that if an employer tries to apply a procedure that complies with the ACAS Code in good faith but makes such a mess of it that the dismissal is unfair, it could be appropriate to award no uplift with the unfairness being compensated by a finding of unfair dismissal. In contrast, if a procedure is applied in bad faith, there is a breach of the ACAS Code.[79]This is a case in which the claimant was dismissed for misconduct. The ACAS Code therefore applies, and there has been no suggestion by either party that it does not apply.[80]We also find that this is a case in which the respondent failed to comply with the ACAS Code by not carrying out the necessary investigations to establish the facts of the case. As we concluded in the Liability Judgment, the respondent failed to investigate or properly consider the evidence submitted by the claimant during the course of the disciplinary process, which was in effect his mitigation.[81]It is incumbent upon any employer when investigating disciplinary matters to look for evidence of innocence as well as guilt. The respondent failed to do that in this case by dismissing the claimant’s mitigation evidence and failing to investigate it. It therefore failed to carry out the necessary investigations to establish whether the claimant had been provoked as he suggested. As a result there was a failure to establish the facts of the case and a breach of the ACAS Code.[82]We have then gone on to consider whether the failure to comply with the ACAS Code was unreasonable. The respondent is a large organisation with a dedicated HR function and significant administrative resources. Whilst considerable steps were taken to comply with the ACAS Code and follow a fair disciplinary procedure, the respondent took a deliberate decision not to investigate the claimant’s mitigation evidence.[83]That failure was, in our view, unreasonable. It cannot be said that it was inadvertent or an oversight. Moreover it should reasonably have been clear to the respondent at the time that the claimant placed a lot of importance on that evidence.[84]For these reasons we find that the failure to comply with the ACAS Code was unreasonable.[85]In light of our findings above, we also find that it would be just and equitable to award an uplift under section 207A of TULRCA. In reaching this conclusion we have considered the size of the overall award to the claimant. We consider that an uplift of 10% would be appropriate in the circumstances. This reflects the seriousness of the respondent’s failure to comply, but also the fact that the respondent did comply with many of the requirements of the ACAS Code.[86]We therefore award an uplift of 10% for failure to comply with the ACAS Code. That uplift is applied before the 40% reduction for contributory conduct, in line with the ‘Adjustments and order of adjustments’ set out in the Employment Tribunal Remedies Handbook 2023-2024. Calculations[87]In light of our conclusions above, we calculate the compensatory award due to the claimant as follows:a. Loss of salary and pension during the notice period (8 April 2021 to 2 July 2021): £6,041.98.b. Loss of salary from 3 July 2021 to 18 December 2023 i. For the period from 3 July 2021 to 30 April 2022 (43 weeks and 1 day) the claimant would have earned £485.51 net per week with the respondent and £69.36 a day (485.51 divided by 7). His loss of salary during this period is (43 times 485.51 plus 69.36) £20,946.29. ii. For the period from 1 May 2022 to 31 December 2022 (35 weeks) the claimant would have earned £486.73 net per week with the respondent. His loss of salary during this period is (35 times 486.73) £17,035.55. iii. For the period from 1 January 2023 to 6 May 2023 (18 weeks) the claimant would have earned £487.99 per week net with the respondent. His loss of salary during this period is (18 times 487.99) £8,783.82. iv. For the period from 7 May 2023 to 18 December 2023 (32 weeks and 1 day) the claimant would have earned £545.46 net per week with the respondent and £77.92 a day (545.46 divided by 7). His loss of salary during this period is (32 times 545.46 plus 77.92) £17,532.64. This gives a total net loss of earnings during this period of (20,946.29 + 17,035.55 + 8,783.82 + 17,532.64) £64,298.30.c. Pension Loss during the same period. We have calculated this on net earnings as we were not provided with gross earnings for this period. Assuming 3% employer pension contributions, the value of lost pension contributions on the sum of £64,298.30 is £1,928.95.d. The total loss of earnings and employer pension contributions from the end of the notice period to 18 December 2023 is therefore (64,298.30 + 1,928.95) £66,227.25.e. From this we have deducted the earnings received by the claimant during this period. This is broken down as follows: i. For the period from 3 July 2021 to 30 August 2022 (using the figures attached to the claimant’s Schedule of Loss) £25,932.52. ii. From 31 August 2022 to 18 December 2023 (67 weeks and 5 days) the claimant earned £455.21 net per week with DHL and £65.03 a day (455.21 divided by 7). His net earnings during this period were therefore (67 times 455.21 plus 5 times 65.03) £30,822.22. This gives total net earnings during this period of (25,932.52 + 30,822.22) £56,754.74.f. Also to be deducted are the employer pension contributions paid from 21 July 2021 to 18 December 2023. We calculate earnings during that period to be £55,587.14, having deducted earnings for the period from 3 to 21 July in the sum of £1,167.60 from the total earnings of £56,754.74 between 3 July 2021 and 18 December 2023. 3% employer pension contributions on earnings of £55,587.14 is £1,667.61.g. The total earnings and employer pension contributions during the period from 3 July 2021 to 18 December 2023 is (56,754.74 + 1,667.61) £58,422.35.h. The difference between what the claimant would have received during the period from 3 July 2021 to 18 December 2023 in salary and pension contributions with the respondent (£66,227.25) and what he actually received (£58.422.35) is £7,804.90. We therefore award the sum of £7,804.90 in respect of lost salary and pension contributions.i. We also award the following sums: i. Loss of statutory rights : £500 ii. Back pay : £740.22 iii. Loss of shares under the Sharesave scheme : £7,521.23 iv. Gym membership to 30 October 2023 : £782.76 v. Gym membership from 31 October 2023 to 18 December 2023 – 1.58 months at £34.49 a month : £54.49 vi. Loss of shopping discount to 30 October 2023: £868.32 vii. Loss of shopping discount from 31 October 2023 to 18 December 2023 – 7 weeks at £6.48 a week : £45.36 viii. Loss of eye tests : £132j. This gives a total loss of (6,041.98 + 7,804.90 + 500 + 740.22 + 7,521.23 + 782.76 + 54.49 + 868.32 + 45.36 + 132) £24,491.26.k. To this we have applied a 10% uplift for failure to comply with the ACAS Code, resulting in an uplifted amount of £26,940.39.l. We have then applied a 45% reduction for contributory conduct, in line with our findings in the liability judgment, resulting in a total payment to the claimant of £14,817.21[88]The respondent is therefore ordered to pay to the claimant a compensatory award of £14,817.21.