The respondent is ordered to pay the claimant compensation in the sum of £124,658.82 for unfairly dismissing the claimant for making a protected disclosure and for asserting his statutory rights, in breach of s103A and s104 Employment Rights Act 1996 (respectively).
REASONS
[1]Following the previous Judgment, the claimant succeeded in his complaints of: dismissal for making a protected disclosure – in breach of s104 Employment Rights Act 1996 (“ERA”) – and asserting a statutory right – in breach of s104 ERA. The claimant also succeeded in his claims for unauthorised deductions from his wages – in breach of s13 ERA. Judgment was given in our previous determination for the latter claims as these were readily quantifiable. Preliminary application[2]On behalf of the respondent, Mr Famutini renewed his application for an adjournment on the basis that Mr Kumar would like to give evidence in person but that he was prevented from returning to the UK from India because of his wife’s illness. This application was contested by the claimant and the respondent withdrew the application before we made a determination.
Evidence
[3]As preparation for this hearing, we (i.e. the tribunal) re-read the witness statements and certain documents from the original hearing bundle.[4]At the commencement of the hearing, the parties helpfully provided a schedule of loss and a counter-schedule of loss. The claimant provided a further witness statement, dated 14 December 2017. Mr Raj Kumar provided an addendum to his witness statement, with which was signed and dated 10 May 2018. Mr Kumar’s statement exhibited three documents. The parties proffered additional documents, which we inserted into our hearing bundle as pages 348 to 450. We retired to read both of the remedy statements, together with the additional remedy documents, before hearing “live” evidence.[5]The claimant gave evidence, during which he confirmed his statement. He was cross-examined by Mr Famutini. We asked a number of questions to clarify matters and Mr Lawrence asked some supplemental questions. Our findings and determination[6]At the outset of the hearing the claimant made it clear that he did not wish to pursue possible reinstatement or re-engagement with the respondent (under s114 & s115 ERA respectively). Given the circumstances of this claim and our previous findings of fact, it would have been unusual – and probably inconsistent – if the claimant requested his job back. So, we confined our consideration to compensation. We award as follows.[7]For the purposes of our determination, the parties had not presented figures, or the calculations, in respect of “grossing-up” of any possible award to take into account any tax or national insurance liability. Therefore, as with our previous determination respect of unlawful deduction of wages, we decided to award figures based on the gross amount to save any further application to gross-up our award.[8]We accept the claimant’s “key figures” in his schedule of loss because this is consistent with our calculations on pay in our previous determination. We note that the claimant commenced work with the respondent on 10 August 2015. His effective date of termination was 20 February 2016. Damages for wrongful dismissal and compensation for the claimant’s notice period[9]Following Stewart Peters Ltd v Bell 2009 ICR 1556 CA a tribunal calculating compensation for unfair dismissal should take full account of any sums earned during the notice period and set these off against the sums in respect of notice pay to which the claimant is entitled. As determined previously, the claimant did not agree a contract of employment, so he is entitled to the statutory notice equivalent, pursuant to s86 ERA. The claimant was employed for more than one month but less than two-years’ service, so he was entitled to a minimum notice period of one week. Accordingly, we award £442.31 (gross) under this head of compensation. Unfair dismissal basic award[10]The basic award is intended to compensate an employee for the loss of their employment. This award is normally calculated in the same way as a redundancy payment. However, the claimant is not entitled to a basic award under s118(1)(a) ERA as he did not achieve the qualifying two-years’ service. Compensatory award under ERA[11]S118(1)(b) provides that the claimant is entitled to a compensatory award for the financial loss he suffered as a result of his unfair dismissal. This award is subject to a limit or cap under s124 ERA, which is not applicable where the claimant made a protected disclosure (under s103A ERA) pursuant to s124(1A) ERA. Notwithstanding the fact that we determined the claimant had been automatically unfairly dismissed for making a protected disclosure and also for asserting a statutory right, the claimant is not entitled to double recovery.[12]The compensatory award is intended to reflect the actual loss that the claimant suffered as a consequence of being unfairly dismissed. So far as the claimant’s unfair dismissal is concerned we should award “such amounts as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”: s123(1) ERA.[13]We remind ourselves that the compensatory award is limited to making good the employee’s financial loss. We should not bring into our calculation any consideration of what might be “just” in order to reflect any disapproval of the employer’s behaviour. Nor should the award reflect any feelings of sympathy for the claimant or our view of what a fair severance payment would be: Lifeguard Assurance Ltd v Zandrozny & Another 1977 IRLR 56 EAT. The purpose of the compensatory award is confined to compensating financial loss and is not in any sense to be used to penalise the employer: see Morgans v Alpha Plus Security Ltd 2005 IRLR 234 EAT.[14]The claimant was under a duty to mitigate his losses. Compensation may be decreased if the claimant had reduced, or could reasonably have been expected to reduce, his financial losses. It is for the respondent to demonstrate that the claimant had failed to mitigate his loss and adduce appropriate evidence in respect of this purported failure: Ministry of Defence v Hunt & Others 1996 ICR 554. A key question for us to ask is whether the claimant had taken reasonable steps to mitigate his loss. Loss of earnings until the hearing and future loss of earnings[15]The claimant explained in evidence (which we accept) that it was his intention to work only for the respondent in the UK, indeed, that was a limitation on his Tier 2 Visa. The claimant explained that it was his intention to stay in the UK for five years (with the respondent) and then return to India to further his career.[16]The claimant said in evidence that, following the incident of 31 December 2015, he had been ill and diagnosed with depression from his GP prior to be referred for cognitive behavioural therapy (“CBT”). Although we did not have a medical report. We did have sick notes from the claimant’s GP, which were consistent and confirmed that the claimant’s contentions that he was too ill to attend work in early 2016. The claimant was dismissed whilst he was on sick leave, his effective date of termination being 20 December 2016 (which we previously determined). The claimant did not submit further sicknotes following his dismissal because, he said, he knew that he was no longer employed by the respondent from that point. We accept the claimant evidence about the onset of his depressive illness and the fact that his depression continued following his dismissal. We reject the respondent’s contention that an absence of sicknotes following dismissal means that the claimant was no longer suffering from depression and available to look for work. We previously found that Mr Kumar and Mr Kapur exploited a vulnerable migrant worker, extorting around half of his wages and compelled him to work long hours. This treatment made the claimant ill. The claimant’s evidence of his ill-health is consistent with this exploitation and we have previously determined that he was a truthful witness. Nothing in his evidence at the remedy hearing undermined his integrity.[17]Furthermore, we saw correspondence which confirmed the claimant’s depression from Dr Helena Belgrave, Counselling Psychologist at the East London NHS Foundation Trust, who referred him for CBT for 12 sessions from February 2016. The claimant said that these sessions lasted until the end of April 2016 and that thereafter he participated in group therapy at his GP surgery. The claimant said that he was depressed and continued with therapy until October or November 2016. However, such was his illness, that he was only able to look for alternative work from the end of May to early June 2016 at the earliest. However, the day after his dismissal (i.e. 21 February 2016) the respondent wrote to the Home Office informing the immigration authorities that the claimant’s employment had been terminated. This implemented Mr Kumar’s threat to remove the claimant’s ability to earn a living in the UK by orchestrating the cancellation of his Tier 2 Visa. The Home Office wrote to the claimant on 16 May 2016 advising him that a decision had been made to curtail his Leave to Remain in the UK (in this instance pursuant to his Tier 2 Visa) and that he was required to either leave the UK or submit a fresh application for Leave to Remain by 18 July 2016.[18]According to the Home Office decision then the claimant had up to around 8 weeks to find a sponsor before he had to leave the UK..[19]The claimant said in his witness statement: I would have liked to earn a living here since my dismissal but my immigration status has prevented me from doing so. I have been taken advice from my immigration solicitor… I have no right to work for anyone else unless I am granted another Visa permitted me to do so. There are four main reasons why I have not sought a sponsor for another Tier 2 Visa:a. It would have cost around £4500 to get another Tear 2 Visa and neither I nor my father could afford that fee. Mr Kumar’s extortion had left me with little or no money and my entire savings have been spent on my previous Visa application and the £5,800 “travel agent training” fee that Acetrip had required me to pay before working here.b. My Tier 2 Visa had been cancelled on the request of my former employer for reasons such as incompetence and aggressive behaviour. These were lies, of course, but no sponsor would have offered me a Tier 2 Visa sponsorship with such a reference.c. The Home Office caps the number of Tier 2 Visas every year. This makes it extremely difficult to successfully apply for one, even with a willing sponsor.d. My experience with Acetrip broke me mentally. I could not bring myself to consider applying for another Tier 2 sponsor during my consequent mental breakdown and depression. Even when I had recovered, I could not bear the thought of putting myself in the same position again. It is also been my understanding that one cannot apply for a Tier 2 Visa from inside the UK unless you are extending an existing Tier 2 Visa, or switching to a Tier 2 Visa from another Visa. Given that my previous Tier 2 Visa had been terminated, applying for another Tier 2 was not possible while I was in the UK. I accept that it would have been possible for me to leave the country and apply for another Tier 2 Visa from outside the UK, but as stated above, I want to see these proceedings through and had no idea how long it would take.[20]We scrutinised this response carefully. In respect of point (a), we accept the claimant’s evidence that the Visa application fees to extend or switch his Tier 2 Visa in the UK were either £677.02 or £1,267 with the documentary verification service. The documentary verification service would speed up the application process by 2 to 4 months. The claimant would also need to pay a compulsory healthcare surcharge of approximately £600 per annum to cover NHS treatment. The claimant described the application process as extremely complicated requiring the submission of various documentation. If any aspect of the application process was not correct or if the documents submitted was not correct, then the application would be rejected, and any applicant would need to start the application process over again. Consequently, the vast bulk of applications were made through solicitors as they have the appropriate expertise in the application process and, if anything went wrong, then the claimant said the solicitors should pick up the tab for any reapplication. Indeed, the claimant said that he did not understand the original Visa application process, which is why he instructed solicitors for his original application. We accepted this evidence, and the appellant’s estimate of £4,500 that he needed to find to obtain another Tier 2 Visa (which would include fees, surcharge, solicitor’s charges and vat).[21]As for point (b), Mr Famutimi contended that the respondent (presumably Mr Kumar) would have provided a positive reference for the claimant so the claimant should have been able to obtain another sponsor within the short window of late-May to mid-July 2016 (and thereafter). We accept that the Tier 2 sponsorship application was long and costly. If an employer is found to abuse the system, then there were significant fines [up to £20,000 for illegal workers]. So finding a new sponsor did not directly equate to finding a new employer. It would have been considerably more difficult.[22]The claimant said he could not rely upon a fair reference from Mr Kumar because he was responsible for his extortion and also he fabricated previous disciplinary warnings and the claimant’s dismissal. We accept this contention. The respondent’s position that the claimant could rely upon a positive reference was wholly untenable. The claimant said that he did not know anyone else who he could apply to as a new sponsor so, we accept, it would be essential in such circumstances that he had a positive reference or introduction and that could not be relied upon from Mr Kumar or anyone else respondent.[23]So far as point (c), if this was the only reason that the claimant relied upon then we would have approached this explanation with caution. However, given the claimant’s predicament, this explanation adds weight to the more substantive points.[24]In respect point (d), the claimant explained that he was living on handouts from his father and barely surviving. He said that he could not ask friends to contribute and his experience in coming to the UK and being exploited by Mr Kumar and Mr Kapur led to a breakdown in his marriage, so it is entirely understandable that the claimant initially wanted to avoid putting himself in the same position.[25]The claimant applied for Further Leave to Remain on 17 July 2016. It was a condition of his temporary immigration status that he was not permitted to work in the UK. The claimant’s application for Further Leave to Remain was refused in August 2017 as the Home Office contended there were no exceptional circumstances to warrant the grant of such immigration status. The claimant appealed against this decision and his appeal is outstanding. It is a term of his on-going immigration status that he is not able to work in the UK. Once he had applied for Further Leave to Remain (in July 2016) he could not make an in-country application for a Tier 2 work Visa.[26]The claimant advised – and we accept – that it was a condition of his Further Leave to Remain that has not been permitted to work in the UK since 17 July 2016 (as he would need a work-related Visa). He accepted that he could apply for a further Tier 2 Visa but – as he is in the UK under a different immigration status (Further Leave to Remain) – he would need to leave the UK and apply out-of-country. The claimant said that the Home Office would take into account the circumstances of his original Visa and because, as a matter of fact, this was cancelled following his dismissal after working for a short period, he anticipated that, even if he were able to find a sponsor (which we accept is unlikely), the Home Office would be sceptical about his working intention. This is wholly the consequence of the respondent’s actions in dismissing the claimant.[27]We accept Mr Lawrence contention that the claimant would have needed extraordinary fortitude to “get back into the saddle” and not only find other work but also find someone else willing and able to sponsor his immigration status in the short window available between his dismissal and the Home Office’s curtailment of his immigration status.[28]Following, the claimant’s immigration application of 17 July 2016, he was then prevented from working unless he left the UK and applied to re-enter on a work-related Visa. We do not find that this was unreasonable that the claimant did not pursue this course.[29]The claimant was very clear that he originally applied for a Visa to last until August 2020 and, but for his dismissal, he would have remained in the UK until the expiry of his Tier 2 Visa (in August 2020). On the balance of probabilities, we find that the claimant would not have returned to India until the expiry of his Visa, i.e. after August 2020.[30]We accept that it was reasonable for the claimant to remain in the UK after July 2016. The claimant pursued his case diligently. We note there had been a number of delays and postponements during proceedings. The claimant attributed to delays in the employment tribunal process to the respondent and said that had this case concluded sooner, then he could have gone back to India much sooner. He said that he only stayed in the UK, without any income, in order to see through his case.[31]The respondent has not convinced us that the claimant has failed to mitigate his losses. Accordingly, we award the claimant his loss of earnings in full up to the date of this hearing. Ordinarily, we would make an award based on net figures. However, as stated above, our award may be subject to tax and national insurance and neither party has provided grossed-up figures, nor have they set out the appropriate calculation. We determine that it would not be just and equitable to award the claimant compensation without making a provision that should HM Customs & Excise claim the appropriate deductions then the claimant should be put in the position that he would have been had the respondent made appropriate tax and national insurance deductions (which it should have had the claimant been paid in the normal way). If any party is dissatisfied with our calculations of the loss of earnings award based on gross figures, then we will consider ordering a review hearing to enable the appropriate grossing-up calculations to be advanced and scrutinised.[32]In all of our considerations we have had consideration to the overarching objective of, so far as possible, putting the claimant into the position that we assess he would have been but for the respondent’s unfair dismissal.[33]Allowing for the claimant’s notice period, for which we have made a separate award, we therefore calculate that the claimant has suffered a loss of earnings of 116 weeks until the remedy hearing. Therefore, we award 116 x £442.31 = £51,307.96 (gross) in compensation for the claimant’s loss of earnings until the date of the employment tribunal remedy hearing.[34]We accept the claimant’s evidence that he would have remained in the UK until August 2020. However, following the termination of his employment, the claimant has remained in the UK in order to pursue his claim. That is entirely reasonable in the circumstances. We understand that the respondent has appealed our decision on liability (which it is entitled to do), but the claimant’s evidence was that he needed to remain in the UK to participate in any appeal and also to undertake any possible enforcement proceedings for his compensation. This is also reasonable in the circumstances. It is clear that the claimant cannot work lawfully while he is in the UK and we regard it as reasonable for him to remain in the UK.[35]So far as predicting the future, we do not know if the claimant will return to India before August 2020 and, although we are a UK industrial jury, we are not familiar with the labour market in India. Under the circumstances, we cannot speculate when the claimant may find other work in India. We have heard no credible evidence as to the circumstances that might give rise to the claimant looking for work in India before August 2020. We cannot foresee what work the claimant would undertake in India or what the relevant rate of pay might be. Any speculation would not do justice to this situation. So therefore, we rely on our factual determination that, but for the claimant’s dismissal, he would have continued to work in the UK until August 2020. We have considered whether it would be proportionate to award the claimant his loss of earnings for a period of over two more years and we determine that rather than impose an arbitrary cut-off period without any factual basis whatsoever. It would be appropriate to award the claimant his losses in full for the entirety of his original Visa placement with the respondent.[36]We are conscious that this award may appear to be punitive towards the respondent. It is not our intention to penalise the respondent although, we note, the totality of this award may well have a punitive effect. We have thought carefully about our figures and we regard the totality of this award to be proportionate in the circumstances and just and equitable. Therefore, we award compensation for future loss of earnings: 117 weeks x £442.31 per week = £51,750.27 (gross). Expenses in looking for alternative employment[37]The claimant has not claimed any expenses in looking for replacement work so we make no award under this head of compensation. Loss of pension rights[38]The claimant did not have a pension with the respondent therefore there is no loss under this head of compensation. Loss of statutory rights[39]The claimant had not worked the requisite period to qualify for statutory rights in respect of unfair dismissal. Although the claimant schedule of loss claims £350, we make no award in the circumstances. ACAS uplift[40]S207A(2) Trade Union and Labour Relations (Consolidation) Act 1992 provides: If, in the case of proceedings to which this section applies, it appears to the employment tribunal that –(a) the claim to which the proceedings relate concerns a matter to rich a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) that failure was unreasonable, the employment tribunal may, if it considers that it just and equitable in order circumstances to do so, increase any award it makes to the employee by no more than 25%.[41]ACAS has issued Code of Practice 1: Disciplinary and grievance procedures (2015). Although the Code of Practice is not legally binding in itself employment tribunals will adhere closely to the relevant Code when determining whether any disciplinary or dismissal procedure was fair. The ACAS Code of Practice represents a common-sense approach to dealing with disciplinary matters and incorporates principles of natural justice. In operating any disciplinary procedure or process, the employer will be required to: - Deal with the issues promptly and consistently; - Established the facts before taking action; - Make sure the employee was informed clearly of the allegation; - Allow the employee to be accompanied and to state their case; - Make sure that the disciplinary action is appropriate to the misconduct alleged; - Provide the employee with an opportunity to appeal.[42]The respondent did not adhere to any of the aforementioned responsibilities when they supposedly disciplined and subsequently dismissed the claimant. Mr Kumar and Mr Kapur made up previous disciplinary warnings and then manufactured the claimant’s dismissal under false pretences. So far as the Code of Practice, the respondent’s failures were manifest and profound. Under the circumstances, we can see little alternative but to award the claimant the full 25% uplift. Any figure short of this would not do justice to our previous determination.[43]The ACAS uplift should be based on net figures; therefore, we have worked out the uplift as follows: 234 weeks x £361.68 = £84,633.12 (net loss of earnings) @ 25% = £21,158.28.
Summary
[44]To recap, we have awarded as follows: Notice period (gross) - £442.31 Loss of earnings to remedies hearing (gross) - £51,307.96 Future loss of earnings (gross) - £51,750.27 ACAS uplift (on compensatory award) @ 20% - £21,158.28 Total = £124,658.82 We award the claimant in the sum of £124,658.82.[46]The claimant has not been paid any relevant social security benefits in the UK so we do not provide a Statement of Recoupment.
Summary
Summary
[1]Following the decision of the Employment Appeal Tribunal (“EAT”), case number UKEAT/0238/18 this case was remitted to reconsider the decision in the respect of remedy which was promulgated on 11 June 2016.[2]The issues to be determined from the EAT judgment were identified in Case Managements Orders dated 12 August 2019 and sent to the parties on 18 September 2019. The issues were noted as follows:2.1 Whether and if so to what extent the claimant’s dismissal by the respondent exacerbated or prolonged the claimant’s depressive illness.2.2 In respect of a possibly Polkey reduction.2.2.1 Given that the claimant had been unfit for work from 31 December 2015 until mid-June 2016 what was the percentage chance that the respondent would have dismissed the claimant fairly for his sickness absence? In assessing the above, the Tribunal may take into account the fact that the claimant’s illness was caused by the conduct of the respondent’s Managing Director and Account’s Manager.2.2.2 What was the percentage chance that, had the claimant remained employed by the respondent, he might have left the respondent’s employment before his visa ran out and returned to India, i.e. at some point before August 2020? If so, at what point does the Tribunal assess that to be?2.2.3 What was the percentage chance that the claimant having been dismissed and/or following the remedies hearing return to India? What mitigation could have occurred in India? And if the claimant could reasonably have mitigated his losses in India, what was the chance of this and when would such mitigation have occurred?2.3 In respect of the Tribunal’s uplift of 25% for the Respondent’s breach of the ACAS Code of Practice in dismissing the claimant, is it just and equitable to reduce the award bearing in mind the absolute value of the amount awarded?2.4 To what extent should the tax-free element of £30,000 to be taken into account in any award of compensation.[3]The parties provided separate bundles which we consolidated at the hearing. The respondent’s bundle contained 255 pages, mostly indexed. The claimant provided a bundle of 57 pages containing his first and third witness statement with exhibits. As preparation for the hearing we re-read previous judgments, the EAT Judgment, witness statements and extracts from the previous hearing bundles and past and revised schedule of losses and counter schedule of losses. We (the Tribunal) considered carefully all of the material presented to us. Preliminary matter[4]On the day of the hearing Mr Issacs suggested a variation to the list of issues. This was not raised prior to the hearing date with either the claimant or with the Tribunal. No application was made in advance of the hearing. Mr Lawrence objected to a variation of the list of issues as, he contended, that the list of issues identified above reflected the issues arising from HH Judge Auerbach’s Judgment and the claimant had prepared his case on the basis of the issues contained in the Case Management Orders.[5]Paragraphs 75 and 76 of the EAT judgement were very clear; mitigation and/or breaking the chain of causation in respect to the claimant remaining in the UK rather than by returning to India, was regarded by the EAT as two sides of the very same coin. Mr Isaacs suggestion to subdivide these points was rejected by the EAT as did not add anything further for the EAT and, we determine, it does not assist our task either.[6]We declined to vary the list of issues as invited to do so by Mr Issacs. The issues identified by the Appeal Judgment were fully encapsulated in the list of issues set out in the Case Management Orders. Furthermore, to ensure fairness between the parties, if Mr Issacs felt that there was some shortcoming in the list of issues identified then he should have avoided taking the claimant and his representative by surprise with his late application. The Tribunal made findings of fact[7]The Tribunal made findings of fact with regard to the claimant’s illness and his dismissal in our Judgment dated 6 March 2018.61. On 11 January 2016, the claimant wrote again to Mr Kumar with an update of his medical condition and he attached a GP certificate. The claimant said he would not be fit for work until 22 January 2016. This email was sent to Mr Kumar at two email addresses and copied to a colleague (“gigo”) and his team leader (“gejo.g”, i.e. Mr Geevarghese). Again, no response was forthcoming.62. The claimant saw his GP on 22 January 2016 and submitted a further sicknote on 25 January 2016. This extended the claimant’s sickness absence to 5 February 2016 in order for him “to recuperate”. Again, this email was sent to Mr Kumar at two email addresses and also the two aforementioned colleagues, none of whom replied.63. The claimant next saw his GP on 5 February 2016. His GP signed him off sick until 19 February 2016. On 8 February 2016, the claimant emailed this certificate to Mr Kumar twice again and to his two work colleagues. As with all the claimant’s emails to the respondent, he apologised for any inconvenience that his absence from work may have caused. The claimant acknowledged that he did not get paid for January 2016, so he asked his employer to pay him statutory sick pay.64. The claimant told his story to his GP who advised him to take further action. The claimant contacted the Home Office in late January 2016 but could not make any progress. He eventually put his complaint in writing to the Home Office on 1 February 2016. The claimant said that he got a reply 2 weeks later and when he telephoned the Home Office someone from customer services told him to call the police. The police referred the claimant to an organisation called Action Fraud and the claimant again reported Mr Kumar on 15 February 2016. Notwithstanding, we have not seen documents relating to these various enquiries, we accept the claimant’s evidence in this regard, which is consistent with correspondence from the claimant’s counselling psychologist. The claimant undertook these actions before he found out that he was dismissed. The claimant was assessed with “anxiety and depression over his work situation” and was recommended to pursue high intensity group cognitive behavioural therapy for 12 sessions (which is a rigorous therapy) by Dr Helena Belgrave on 11 February 2016.65. On 20 February 2016, Mr Kapur emailed the claimant a copy of a letter dated 31 December 2015, which terminated the claimant’s employment with immediate effect. The reason for dismissal was “in view of the two previous warnings and the incident of serious misconduct on 31 December 2015”. The letter asked that the claimant contact Mr Kapur upon receipt to arrange an appointment for him to collect his salary and P45 and to return any company property or belongings. This letter was contrived to backdate a termination of employment to coincide with the claimant’s last day in the office.66. The claimant’s employment ended on 20 February 2016. This was the date that he received notification that his employment had ended, so this date is the effective date of termination.67. The claimant wrote back to Mr Kapur an hour or so later, pointing out that the respondent had addressed the letter incorrectly and that he had never received any warnings during the course of his employment nor that he was involved in any serious misconduct on or before 31 December 2015.68. The next day, i.e. 21 February 2016, the respondent wrote to the Home Office informing the immigration authorities that the claimant’s employment had been terminated. The claimant was not advised of this step by the respondent and he heard nothing further until 4 March 2016 when he wrote to the respondent setting out the money that he believed he was owed.69. Later that day, Mr Kupur responded that the termination letter was sent to the wrong address as a “clerical error”. Mr Kapur contended that he then sent a letter to the correct address. On behalf the respondent, Mr Kumar rejected the claimant’s claims. Mr Kumar said that there were two warnings recorded against the claimant dated 29 October 2015 and 22 December 2015.70. The respondent subsequently provided copies of two letters purporting to be disciplinary warnings dated 27 October 2015 and 17 December 2015. Notwithstanding that these are not valid disciplinary warning letters; these letters were manufactured for the purposes of the justifying an unfair dismissal and were an attempt to deceive the claimant initially, those who represented or assisted him and, latterly, the Employment Tribunal.[8]We make clear from our determination that Mr Kumar, the Managing Director of the respondent company, assisted by Mr Kupar, the Accounts Manager, extorted considerable money from the claimant under the threat of cancelling his visa (which he eventually did). The claimant was dismissed, we found for manufactured and spurious reasons. We accept Mr Lawrence’s submission that the dismissal was the final part of the mistreatment.[9]Whereas, in this exceptional saga, it seems an artificial distinction to separate and evaluate the effect of the claimant’s dismissal from his exploitation in respect of the unlawful deductions from his wages and the constant threat of the removal of his visa, this is the task we need to undertake. The claimant referred to how his experience with the respondent broke him mentally and his evidence does in many respects conflate the treatment he experienced from Mr Kumar and Mr Kupar with his dismissal by Mr Kupar.[10]So, the claimant was off ill as a result of the respondent’s extortion and threats until he learned of his dismissal on 20 February 2016. On 11 February 2016 Dr Helena Belgrave, counselling psychologist, expressed her concerns about the claimant’s suicidal tendencies so his depression at that stage was significant. Nevertheless, Dr Belgrave recommended high intensity CBT to treat his depression commencing towards the end of March 2016 and lasting for 12 group sessions.[11]The claimant’s first statement described his initial reaction. He said he could not believe his dismissal, he panicked, he just wanted to know what was going on. The claimant was able to reply immediately to the dismissal letter. The claimant thereafter took a number of positive steps. He contacted the citizen advice bureau and then he contacted ACAS in the first week of March 2016 and then corresponded with his employer on 4 March 2016. On 15 March 2016, he was able to initiate early conciliation through ACAS and on 30 March 2016 he dealt with the inability of Action Fraud to deal with his extortion claim. On 15 June 2016, the claimant made his Employment Tribunal claim.[12]On 16 May 2016, the Home Office advised the claimant that his Leave To Remain in the UK was curtailed. The claimant applied for Further Leave To Remain on 16 July 2016.[13]All of this shows that the claimant was not wholly incapacitated by his stress or depression, from at least early March 2016. The claimant said that he was able to work from end of May to early June 2016 at the earliest and this is consistent with the timeframe that we were able to deduce from Dr Belgrave’s letter.[14]The claimant’s effective date of termination was 20 February 2016. Prior to this point, the claimant had been made ill by the respondent’s exploitative treatment of him. There is no other reason for the claimant’s stress and anxiety other than the treatment that was meted out to him by Mr Kumar and Mr Kapur. We find paragraph 17 of the remedy determination that the claimant was only able to look for alternative work from the end of May to early June 2016 at the earliest which is consistent with the steps that he had taken and the CBT treatment timescale. So, the claimant had a residual earning capacity from around late May to early June 2016 at the earliest.[15]The claimant’s dismissal – of 20 February 2016 – inevitably exacerbated the claimant’s depressive illness because that is the evidence that he has given. However, the extent that this was exacerbated and prolonged is discernible from the above timeline: the claimant’s dismissal by the respondent exacerbated or prolonged his depressive illness until the end of May or early June so he would have been in a position to return to work at, say mid-point, which we assess as 1 June 2016. Consequently, we adjust the award to reflect a deduction from the claimant’s original award to reflect the statutory sick pay (“SSP”) payable from the date of dismissal to 1 June 2016. The appropriate SSP rates for the relevant period was £88.45 per week.[16]We remind ourselves that throughout this employment relationship, this was a respondent that had no intention of treating the claimant fairly. Mr Kumar and Mr Kupar extorted money from the claimant. They were not interested in the claimant’s illness, other than this curtailed their ongoing extortion. The respondent did dismiss the claimant when he no longer served this purpose and they followed through on their threat to notify the Home Office with its inevitable consequence to the claimant’s immigration status. However, in our remission from the EAT, we are tasked with dealing with the claimant’s sickness absence, a counter-factual assessment, and an assessment of the chance that a (reasonable) respondent would have dismissed the claimant fairly for his sickness absence.[17]Notwithstanding the fact that the claimant has not accrued the statutory right not to be unfairly dismissed, we accept Mr Lawrence’s submission that there was no realistic chance that a dismissal of the claimant by the respondent as a consequence of the claimant’s illness would have been fair.[18]However, the claimant’s illness was caused by the conduct of the respondent’s senior officials and if we were dealing with a reasonable employer then a reasonable employer would have made allowances for the fact that the conduct of its Managing Director and Accounts Manager had caused the claimant’s depressive illness, analogous with the provision referred to by the EAT in McAdie v Royal Bank of Scotland [2008] ICR 1087.[19]The claimant’s illness was ongoing; nevertheless, he provided the respondent with regular sick notes. The respondent did not engage with the claimant’s sickness absence, so the claimant was not asked to provide details of how his illness was progressing. Had the respondent engaged with the claimant’s medical condition, then they would have learned by no later than mid-February 1996 that, although the claimant’s condition was quite severe at that point, Dr Belgrave thought he would benefit from high intensity CBT. Had the claimant not been dismissed at the end of February 2016 then his illness may not have been exacerbated. In any event, the claimant was able to be available for work sometime around 5 to 5½ months after his illness began. If he had not been dismissed, then on balance, we find that the claimant’s recovery would have been sooner (as there was not so much detrimental treatment to get over). Given that the employer had caused illness; given that the claimant would only qualify for SSP and the respondents would not incur his wages during this period; given that there was no evidence that a replacement for the claimant was needed (or indeed that he was replaced); given the fact that the claimant kept his employers fully informed of his illness during his employment; and given that there was a very clear indication that medical treatment was likely to prove beneficial 2½ months into his sickness absence, we determine that a reasonable employer would not have dismissed the claimant in such circumstances.[20]We emphasise at this stage that we do not regard the respondent as a reasonable employer. Mr Issacs’ submission that the respondent would have dismissed the claimant on account of his sickness absence is rejected in any event. If there was a significant chance that the claimant would return to work, and to the ongoing exploitative relationship, then we believe both Mr Kumar and Mr Kapur would have seized such opportunity.[21]In any event, we do not believe that the claimant would have been dismissed fairly for his sickness absence. Such a fair dismissal would have been wholly inconsistent with the conduct of this employer and our findings of fact.[22]The claimant was committed to his employment with the respondent and it was on that basis that he secured his Tier 2 visa and moved from India to the UK. His family supported his move to the UK, and he regarded this as a positive career pathway.[23]The respondent’s position was that the claimant was committed to working in public relations and that, in effect, the respondent had misled the claimant by portraying his role as a PR Consultant. Under such circumstances, the respondent contends, the claimant would have sought out, and obtained, other employment either in the UK or in India in a public relations capacity.[24]The Tribunal is persuaded by the claimant’s evidence that once he commits to an object, he tends to see things through. So, the claimant came to the UK to work in PR. His upset about not working in public relations was wholly insignificant when compared to the exploitation by his employers. However, assuming such exploitation never occurred, he may well have investigated other employment in the UK with a public relations orientation. However, any alternative job would still require an employer paying a significant amount of money to the respondent (or Home Office) in respect of the visa fees and be willing and able to comply with the Home Office immigration requirements, which was a significant task in itself.[25]The claimant was tenacious in following through his employment and once committed to an employer, we are satisfied that he would not want to change to another employer. His job title stated, “Public Relations Consultant”, which was sufficient for his cv and the claimant said in evidence, which we accept, that the job contents he was undertaking would not necessarily preclude him from finding other PR work. So, we accept the claimant’s evidence that there was no realistic chance that the claimant would have sought out some alternative PR job particularly as there are numerous jobs in the workplace where the reality of the job contents does not necessarily match the job title. The claimant gave evidence that he would have stayed in his employment in the UK for 5 years – the duration of his visa. Taking up the job with the respondent and moving to the UK was a big commitment and he did not want to see that commitment fail and potentially blot his cv.[26]WE also accept that the chances of the claimant looking for and obtaining a new sponsor in public relation would be non-existent as he could not rely upon the respondent to assist. We find Mr Kumar and Mr Kumar would be satisfied to continue the exploitation of the claimant for the duration of his work. These two individuals are not going to give up an easy cash cow. A respondent that manufactured disciplinary warning letters and faked their dismissal is not going to provide the claimant with an easy get out through an honest reference. Neither were going to lose a source of easy money. Therefore, we find that there was negligible chance that, had the claimant remained employed by the respondent, he might have left the respondent’s employment before his visa ran out and/or return to India at some point before August 2020.[27]The EAT ordered the Tribunal to spell out our reasons for believing that staying in the UK solely in order to continue with the conduct of this litigation meant that it was not reasonable to expect the claimant to mitigate his loss by returning to a country where he would have the right to work. 28 in respect of the Indian job market, at the reconvened hearing, the Tribunal had the benefit of hearing evidence from Mr Andrew Dominic Nicoll, employment consultant. Mr Nicoll gave evidence on matters that were largely speculative, but his assistance was valuable, and his appraisal of the job search task in India for the claimant appeared measured and credible, which we accept. Mr Nicholl’s said that he anticipated that the claimant would be able to find work in India in finance within 6 months of his return. If the claimant wished to pursue a job in public relations, then it would take the claimant a similar amount of time although possibly longer bearing in mind that the claimant’s cv was more orientated for a job in banking and finance. Mr Nicholl’s came to the reasonable deduction that if the claimant was not able to obtain a job in PR within 3 months, then the claimant should widen his search to look for a job in banking. In such circumstances, which the Tribunal think may well be likely, it would take the claimant 9 months to secure a job in finance (at a higher wage) or 6 months for the claimant to secure a job in PR (at a lower wage).[29]The claimant had a cv that was more orientated towards finance although for reasons which the claimant explained at the hearing, and we accept, he did not wish to pursue a career in finance. He said that he preferred a career in PR, which is why he accepted employment with the respondent (as a PR Consultant). Finance would give the claimant a higher pay but was a more pressurised and intense working environment, PR was his more favoured, and creative option, although the pay was not as high.[30]The claimant’s criticised the respondent for the number of adjourned hearings and that the respondent had delayed and obfuscated at every instance. Having reviewed the Tribunal correspondence, there is some force in this claim. However, irrespective of whether we accept this point, we note that over 16 months after our original judgment, the claimant has not been paid the substantial amount of his compensation. Our first Judgment was promulgated on 6 March 2018 and provided for the respondent to pay the claimant outstanding wages in the sum of £8,372.29. The Tribunal awarded compensation for the claimant’s automatic unfair dismissal on 11 June 2018. The Tribunal ordered that the respondent pay the claimant £124,658.82. Of this further award, the respondent accepted that it owed the claimant £31,600.08. So, by the respondent’s own reckoning, they owed the claimant £8,372.29 plus £31,600.08 which equals £39,972.37 (excluding any interest owed). The claimant contended that he received no money, so he secured an order that the respondent’s pay him £10,000 following a court order arising from the hearing of 23 July 2019.[31]The claimant said he had a mobile phone and that he had access to a computer. The claimant said that it was not plausible that he would be able to conduct his claim from India. The claimant said that he would not be able to get access to a free representation unit (“FRU”) representative via India, which we accept. He said he remained in the UK to brief his barrister and attend meetings when necessary which he did on 7 to 8 occasions throughout the duration of the claim. The claimant said that he was not aware that he could conduct his claim from India, and he had no advice on this matter. It was reasonable for the claimant to assume, as a non-UK national, that a Indian citizen living in India could not pursue a claim based entirely on UK-domestic employment law.[32]The respondent said that there was no good reason for the claimant to remain in the UK. If the claimant left the UK, then he would have surrendered his visa. He qualified for Further Leave To Remain on the basis of his appeal and he advised us, which we accept, that if he left the UK then his outstanding appeal would collapse and his immigration status would be revoked.[33]The respondent said there was no reason why the claimant could not conduct his litigation in India and then return to the UK either on a holiday visa or alternatively on a fresh Tier 2 visa. The Tribunal accepts the claimant’s assertion that his chances of obtaining a fresh sponsor and a fresh Tier 2 visa from India were negligible given both the record of his dismissal and the revocation by the Home Office of his original Tier 2 visa. If he were to abandon his current Further Leave To Remain in the UK, then we accept the claimant would have difficulties in obtaining re-entry to the UK.[34]The respondent said that the claimant could have secured alternative employment in India at some point and the money given to the claimant by his father and friend could have been utilised in travel to the UK for conferences and hearings and presumably for the purposes of the enforcement. Such is the history of this claim, it is duration and various pathways, that it would test the resilience of any party. We note that proceedings have been disrupted by Mr Kumar’s occasional trips to India. Nevertheless, Mr Kumar was domicile in the UK and had the full support of the respondent and legal representatives. Mr Kumar’s burden in proceedings was not as great as that of the claimant and the claimant had significantly less resources available.[35]We remind ourselves that the obligation in respect of mitigation is not whether the claimant has behaved reasonably but whether the respondent can establish that the claimant has behaved unreasonably.[36]The claimant’s witness evidence and Mr Lawrence’s submissions in respect of securing representation are entirely understandable and reasonable. We note that Tribunal proceedings are complex and stressful. This is a claimant that had suffered quite severe psychiatric illness as a result of his treatment by the employer and is committed to see this case through to the end.[37]This is also a non-UK national claimant that needed considerable assistance from a representative from the FRU to navigate through the Employment Tribunal process. We accept the claimant’s evidence that he could not do this himself. We accept the claimant’s evidence that he would not have been in a position to instruct UK employment lawyers in India to represent him in the London East Employment Tribunal proceedings. The claimant had no legal experience or connections and even on the more mundane practicalities, there is a 4½ hour time lag for any telephone conferences, skype conferences etc.[38]We accept the claimant’s evidence that he would not be in a financial position to instruct solicitors in India. He incurred significant debt living in the UK, through the respondent’s extortion. The proceedings have been elongated and complex and would have been difficult enough dealing with it in the UK. The Tribunal accepts that it would have been possible for most claimants to deal with their claim from a country abroad but in respect of this particular Claimant, we find it was “not unreasonable” to seek to remain in the UK to follow through his claim. Indeed, we find that the claimant was reasonable in staying in the UK, despite being able to obtain employment in India within 6 to 9 months.[39]The claimant’s employment would come to an end with the expiry of his visa in August 2020 so his losses could not continue past this date. The past is indicator of future conduct and we anticipate that the claimant will need to remain in the UK past August 2020 to ensure that appropriate compensation is paid and undertake enforcement proceedings, if necessary. In any event, when he leaves the UK. We anticipate it will take him up to 9 months to obtain suitable alternative employment in India. Mr Nicholls accepted in evidence that his forecast for earnings were estimates and the cost of living comparisons were largely very rough calculations. Mr Nicholls said that he was no expert in evaluating the cost of living in India, which was both complex and requires detailed documentation if it is to assist us. Notwithstanding, the respondent did not comply with any disclosure requirements for an expert report, as stated above, Mr Nicholl’s experience was helpful to us in coming to our deliberation about the employment options available to the claimant in India and how long it would be expected to take the claimant to find another job. We reject Mr Lawrence’s submission to ignore this evidence in its entirety.[40]If the claimant was likely to return to India following the reconvened remedy hearing, then we anticipate that he would not be able to find a suitable alternative job for 9 months, which is likely to coincide with his original employment cut-off date of 9 August 2020. In any event, we assess that it is reasonable for the claimant to remain in the UK until he has been paid his compensation.[41]In making the above determination, we note the claimant’s contention that he was dealing with an unscrupulous employer and our findings in respect of the integrity of Mr Kumar and Mr Kupar. Had the respondent paid the claimant the money that it now accepts it had owed the claimant i.e. £39,972.37, then the respondent’s argument about the claimant returning to India may well have had greater strength.[42]In respect of the Tribunal’s uplift of 25%, the Tribunal reconsidered the award bearing in mind the absolute value of the amount awarded. The respondent suggested a 10% reduction to an award of 15% to reflect the potential high sum of this uplift. The claimant contended that a 25% uplift remained appropriate.[43]Mr Issacs submitted that the respondent was a relatively small organisation (of around 13 staff). That they had no human resources support and that they were dealing with an individual who did not have sufficient qualifying service to bring an unfair dismissal claim.[44]The Tribunal made the findings of fact that the respondent falsified warning letters to justify the dismissal and then falsified documentation in order to pretend that the dismissal occurred earlier. Our previous findings determined that the respondent’s failures under the ACAS Code of Practice were manifest and profound. We also found that in the respondent’s dismissal of the claimant, the respondent wholly disregarded all of the basic tenants of the ACAS Code of Practice. We determined that this was a dismissal that was contrived and was wholly without merit.[45]Having reviewed our 25% uplift and having considered the quantification of £20,252.46, we are convinced that this is appropriate and just and equitable in the circumstances of the case. The full percentage uplift awarded reflects our disapproval of the respondent’s unreasonable failure to comply with the basic tenets of a fair dismissal process as set out in the ACAS Code of Practice. In the circumstances of this case, any percentage reduction would not do justice to the respondent’s breaches. So, whereas the amount is large (and appropriate) any reduction for the quantum would undermine the gravity that we view the respondent’s default. Under the circumstances, we see no justification in reducing the full uplift available to us.[46]So, the Tribunal has reviewed carefully the claimant’s schedule of loss and the respondent’s counter-schedule. At the hearing, Mr Issacs did not contend that the claimant’s figures were themselves incorrect merely the fundamental premise of the calculation was wrong. Mr Isaacs accepted that the figures quoted by the claimant for tax threshold and personal allowance were accurate.[47]We have set out the losses that we award as follows: Overview Date of commencement of employment 10 August 2015 Effective date of termination 20 February 2016 Age at EDT 27 years Estimated date of hearing 3 October 2019 Lost Earnings £ £ Gross salary = £23,000 Net weekly income 2015/2016 360.23 Net weekly income 2016/2017 361.85 Net weekly income 2017/2018 363.92 Net weekly income 2018/2019 365.77 Net weekly income 2019/2020 368.77 Loss of earnings for period: 20.02.16 to 01.04.16 £88.451 x 6 weeks 530.70 02.04.16 to 31.05.16 £88.452 x 9 weeks 796.05 Statutory sick pay at 2015/16 rate[2]SSP at 2016/17 rate 01.06.16 to 31.04.17 £361.85 x 43 weeks 15,559.55 01.04.17 to 30.04.18 £363.92 x 52 weeks 18,923.84 31.03.18 to 05.04.19 £365.77 x 53 weeks 19,385.81 01.04.19 to 09.04.19 £368.77 x 70 weeks 25,813.90 Net total Various x 233 weeks 81,009.85 Loss of earnings from EDT to hearing: 64,783.97 Future loss of earnings from hearing to 09.08.20 16,225.88 Adjustments under s207A TULRCA Total Loss 81,009.85 25% uplift for failing to comply with ACAS code 20,252.46 Total 101,262.31 Grossing Up Total Taxable Compensation 101,262.31 (Less s403 ITEPA threshold) (30,000) (Less Adjusted Personal Allowance 2019/2020) (9,311.80) 61,950.51 £0 – 50,000 @ 20% 10,000.00 £50,001 – 67,064.62 @ 40% 6,825.85 Total after Grossing Up 78,776.36 Plus s403 ITEPA threshold added back in 30,000 Plus Adjusted Personal Allowance 9,311.80 Grand Total 118,088.16