Mr G A W Wanya v Barts Health NHS Trust: 3200688/2024
JUDGMENT
ON REMEDY having been sent to the parties on 21 July 2025, the Claimant has requested written reasons. REMEDY REASONS[1]Having found that the Claimant succeeds with his claim for constructive unfair dismissal, I now need to determine the remedy to which he is entitled.[2]There was a discussion as to whether the evidence and argument should be heard on remedy today, or whether this should be postponed to a later date. The Claimant was asking that this should be deferred to a future hearing to enable further evidence to be obtained in relation to remedy. This was opposed by the Respondent.[3]I decided that it was in accordance with the overriding objective for the issue of remedy to be dealt with today. This would save expense, allocate a proportionate share of the Tribunal’s resources to this case, and would enable the parties to be on an equal footing. Both parties are legally represented. Both parties received the Tribunal’s initial directions. These provided that by 27 July 2024 the parties were to send each other copies of all the documents they have relevant to the claim. The text went on to provide: “This includes documents relevant to financial losses and what the claimant has done to find another job. Documents includes recordings, emails, text messages, social media and other electronic information. You must send all relevant documents you have in your possession or control even if they do not support your case.”[4]A further direction dealt with the content of witness statements, which were to be exchanged by 23 August 2024. It included the following text: “They must also include any evidence about financial losses and any other remedy the claimant is asking for. If the witness statement refers to a document in the file it should give the page number.”[5]On day 3 of the Liability Hearing, which could not proceed due to ill health on the part of Respondent’s counsel, I indicated that the rescheduled day would start at 9.30am so that the Tribunal could deal with remedy if the Claimant succeeded on liability.[6]Therefore, both in the directions that had been provided and in what I had said to the parties on Day 3, it was abundantly clear that I required that there was evidence on remedy before the Tribunal before today’s hearing.[7]Despite these clear directions, there was no reference in the Claimant’s witness statement to matters of remedy. In addition, no documents had been disclosed dealing with the Claimant’s health in the period after his resignation and with the attempts that he made to obtain alternative work.[8]I permitted the Claimant to give further oral evidence on these matters, albeit that it was not backed up by any documents. He said that he was not fit for his role with the Respondent for a period of six months after his resignation. He made reference to a second job that he was doing, described as teaching which he said he could do from home. However, there was no detail as to when this had started, how many hours it occupied each week, and whether he was able to expand this role to cover additional hours to earn additional pay, notwithstanding his health. In short, his evidence was extremely vague.[9]In cross examination, Mr Yetman on behalf of the Respondent asked questions designed to advance the remedy arguments that he was pursuing. These were that there was contributory conduct under Section 123(6) Employment Rights Act 1996 in failing to raise the reduction in the Claimant’s pay with his line manager such that there should be an appropriate reduction; that the Claimant would have resigned or been dismissed in any event after a further six months, at a point where the Claimant’s pay had reduced to nil; and that there had been a failure to mitigate loss by failing to failing to seek alternative work.[10]One factual dispute that emerged during the course of cross examination was this. The Claimant argued that he had emailed Mr Biela to raise the underpayment of wages. However, there are no emails in the bundle to confirm this. It does not appear that the Claimant’s solicitors have produced such emails (which ought to have been accessible if sent from his personal email address – which was the email address to which Mr Biela had sent his email of 6 September 2023). There was disclosure of the 6 September 2023 email, but not of any further emails in the same chain by the Respondent. Nor does there appear to have been any request made by the Claimant’s solicitor for these emails to be disclosed by the Respondent. There was no reference to such communications by Mr Biela in his witness statement and he was not cross examined about such emails. It is likely that if the Claimant had raised the underpayment of pay at the end of August or at any point thereafter before his resignation it would have been investigated by the Respondent. There is no evidence that it was. Therefore, I reject the Claimant’s evidence that he raised the underpayment with the Respondent by email.[11]My conclusions on these matters are as follows:a. Period of loss: It is clear from the Claimant’s resignation letter and subsequent correspondence that the Claimant was deeply dissatisfied with the way he had been treated. His dissatisfaction covered several matters in addition to the reduction in his sick pay since the start of August 2023. Given this level of dissatisfaction, it is likely that the Claimant would have chosen to resign at some point in the relatively near future in any event. Increasing his sick pay in relation to the period from August to October would not have resolved his dissatisfaction. This conclusion is fortified by the Claimant’s evidence that he had another job as a teacher, where he could work remotely. As a result, resigning from his role with the Respondent would not mean that he was without income. It is for the Claimant to prove his loss and to prove that he would still have been in employment for the foreseeable future. Although he has argued that he would have remained in employment on sick pay until the sick pay would have expired, six months after his resignation, I do not consider that this is borne out by the totality of the evidence. Doing the best I can, I conclude that the Claimant would have resigned after three months. Therefore, his period of loss is limited to three months.b. Rate of pay: I consider that the appropriate rate of pay that the Claimant has lost as a result of his constructive dismissal is half pay, which is what he would have received by way of sick pay from 3 November 2023 onwards. The Claimant concedes that he would not have been fit enough to have returned to work with the Respondent for at least six months and therefore would have been on sick pay during a period of three months. The fact that he would have only been receiving half pay during that period is further confirmation that he would have had less reason to stay in his employment even if the breach of contract in failing to pay him sick pay from August to October was remedied.c. Contributory conduct: I accept that the Claimant is guilty of contributory fault in failing to raise the issue of the underpayment of his pay from mid-September onwards. He knew from the significantly reduced pay that he received at the end of August that he had been underpaid. However, his line manager Mr Biela was also at fault in failing to proactively investigate the reduction in his pay, given that he knew about this at least since receiving an email from payroll suggesting that the Claimant’s sick pay was about to reduce to nil pay. The primary responsibility for ensuring that the Claimant’s pay is correct is on the Respondent as employer. Furthermore, the Claimant was unwell during the period from late August to October in that he underwent a medical procedure in hospital in mid-September. Bearing those matters in mind I consider that the appropriate reduction to the Claimant’s compensatory award for contributory fault is one of one third.d. Failure to mitigate: Given my findings as to the duration of employment and given that the Respondent concedes that the Claimant would be entitled to recover three months loss of earnings even if the Claimant had failed to mitigate his loss, I do not need to make any finding on this issue. However, this is a further reason why the period of loss should be limited to a period of three months. I recognise that the burden is on the Respondent to establish that there has been a failure to mitigate. This requires the Respondent to show on the balance of probabilities not just that there has been a failure to use reasonable efforts to seek alternative work, but that if sought he would have obtained such work. Given the total lack of evidence as to the Claimant’s attempts to mitigate his loss by obtaining other work, I find that the Respondent has established that the Claimant has failed to mitigate his loss. The evidence of the Claimant seemed to be that he was fit to do his second remote teaching job – given that he explained he had continued to work in this capacity and did not need to rely on benefits. His failure to disclose any documents about this other role and its income causes me to be sceptical about whether he has been able to mitigate his loss by increasing his earnings from other employment. I do not accept he was unable to work for a six-month period from 3 November 2023. Doing the best I can, in circumstances where the evidence is very limited, I conclude that the Claimant’s failure to mitigate is a further reason why the period of loss should be limited to a period of three months.e. I do not make any finding as to whether the Claimant would have been dismissed by the Respondent after a further six months on sick leave. There is no evidence to this effect from the Respondent. I also do not find that the Claimant would have resigned at that point from his employment. Such a finding is not necessary to make given that I have limited the Claimant’s compensation to a period of three months from the date of dismissal.f. Basic award: (£1713.55 x 12)/52 = £395.43 [gross weekly pay] x 5 [full years continuous employment] x 1.5 [age adjustment) = £2965.73. This is to be reduced by one third for contributory fault, which is £1977.15g. Calculation of compensatory award: Given the reduction for contributory fault, the appropriate remedy to award by way of compensatory award is two months’ pay. Two months net loss of sick pay (after discount of one third for contributory conduct) at the rate of half contractual pay is £856.78 gross per month (£582.61 per month net) x 2 = £1165.22 net. In addition, the Claimant is entitled to recover two months loss of pension contributions (after discount of one third for contributory conduct). This is £856.78 x 2 x 7.7% = £131.94 net. This gives a total compensatory award of £1297.16.h. Loss of statutory rights: In circumstances where the Claimant’s employment would have ended with his resignation after three months in any event, during a period when on his own case he was unfit to work, I do not consider it is appropriate to make an award for loss of statutory rights. He would not have been in alternative employment in any event until after the point at which he would have resigned from the Respondent.i. Total award is therefore £1977.15 [basic award] + £1297.16 [compensatory award] = £3274.31.[1]Had the Claimant’s employment continued beyond the point at which he resigned, the Claimant would have been on sick pay at half his contractual pay rate, as he would have continued to be unfit for work.[2]The Claimant would have resigned his employment within three months in any event even if he had not been constructively dismissed. Furthermore, as a result of the Claimant’s unreasonable failure to mitigate his loss, he is not entitled to recover for any loss of earnings after a period of three months.[3]The appropriate reduction to the Claimant’s compensatory award under Section 123(6) Employment Rights Act 1996 (dismissal caused or contributed to by any action of the Claimant) is one-third.[4]It is not appropriate to make an award for loss of statutory rights in circumstances where the Claimant’s employment would have ended within three months when, on his own case, he was unfit to work. Case Number: 3200688/2024[5]The remedy for the Claimant’s constructive unfair dismissal claim is as follows:a. Basic award: (£1713.55 x 12)/52 = £395.43 x 5 x 1.5 = £2965.73. This is to be reduced by one third for contributory conduct = £1977.15.b. Compensatory award: £1297.16 i. Two months net loss of sick pay (after discount for contributory conduct) at the rate of half contractual pay. This is half of full contractual pay, namely £1713.55 gross per month ie £856.78 gross per month (£582.61 per month net at marginal tax and NIC rate) = £1165.22 ii. Two months loss of pension contributions (after discount for contributory conduct). This is £856.78 x 2 x 7.7% = £131.94 net. iii. Loss of statutory rights: £0 iv. Total: £1165.22 + £134.94 = £1297.16.[6]Therefore, subject to any need to correct these figures for clerical mistake and accidental slips under Rule 67 of the Employment Tribunal Rules 2024 the total sum due to the Claimant is £1977.15 + £1297.16 = £3274.31