Mr William Hall v London Basket Ball Club (UK) Ltd: 3200792/2018
EMPLOYMENT TRIBUNALS
Case No 3200792/2018
Between
Mr William HallClaimantLondon Basket Ball Club (UK) LtdRespondent
Before
Employment Judge HallenDate 1 June 2021
JUDGMENT
The unanimous judgment of the Employment Tribunal was that: -[1]The Claimant was constructively wrongfully dismissed and also had unlawful deductions of wages made from his salary. The Respondent is ordered to pay the sum of £3150.00 in respect of unlawful deduction of wages with an uplift of 15% of £472.50, making the total of £3622.50.[2]Due to his constructive wrongful dismissal the Respondent is ordered to pay the Claimant fourteen days compensation in the sum of £1050.00 with a 15% uplift of £157.50, making a total of £1207.50.[3]The Respondent failed to provide the Claimant with statutory written particulars of his terms and conditions of his employment and is ordered to pay the sum of two weeks’ pay in the sum £1050.00.[4]The Respondent failed to pay the Claimant holiday pay at the termination of his employment in the sum of 1.2 weeks at a total of £581.54 with a 15% uplift of £87.23 in respective of the ACAS code of practice, making a total of £668.77 in respect of unpaid holiday pay.[5]The Respondent is ordered to pay a total amount of £6,548.77.[6]The Respondent’s counterclaim against the Claimant is dismissed as the Respondent was in breach of contract and is not entitled to make a counterclaim against the Claimant as a consequence of such breach. The breaches identified above in 1 and 2 were fundamental breaches of contract in respect of the Respondent’s failure to pay the Claimant his wages.
REASONS
Issues
[1]The Claimant presented his Claim Form on 16 April 2018 and the Respondent presented its Response Form on 20 May 2018. Th claim was listed before a judge sitting alone on 14 and 15 February 2019. The Claimant made various claims in his Claim Form. These related to unlawful deductions of wages for January 2018 to 14 February 2018, which was the date of his resignation. The Tribunal had to ascertain whether the Claimant was entitled to wages as an employee of the Respondent during this period of time and to ascertain what the total amount of such wages were?[2]The Claimant also claimed constructive wrongful dismissal, in that the Respondent failed to pay him his wages for January 2018 to 14 February 2018. The Claimant asserted that this was a fundamental breach of contract entitling him to resign. The Tribunal had to ascertain whether the failure to pay wages by the Respondent during this period of time was a fundamental breach of contract. If so, did the Claimant resign as a consequence of such breach? In addition, the Tribunal had to decide upon the correct amount of damages owed to the Claimant for such constructive wrongful dismissal.[3]Thirdly, the Claimant asserted that the Respondent failed to provide him with full particulars of his terms and conditions of employment pursuant to S.1 of the Employments Rights Act 1996 (ERA). The Tribunal had to ascertain whether such particulars were provided to the Claimant and whether they were in compliance with S.1 of the ERA 1996 insofar, as there was a breach to provide such terms and conditions of the employment. The Tribunal had to ascertain whether the Claimant was entitled to a minimum of two or a maximum of four weeks’ pay for such breach.[4]Finally, the Claimant asserted that he as an employee was entitled to holiday untaken at the time of his termination. The Tribunal had to ascertain whether as an employee, employed under a contract of employment the Claimant was entitled to holiday or holiday pay for the relevant period of his employment and to ascertain the amount due and owing to him.[5]The Claimant at the Tribunal hearing withdrew his claim for breach of s.8 of the ERA relating to his claim for particularised wage slips.[6]The Tribunal had before it a bundle of documents prepared by the Claimant which contained the substantive documentation as well a supplementary shorter bundle of documents prepared by the Respondent. The parties agreed after a short adjournment that the Respondent’s documentation should be inserted without reference being made to ‘without prejudice’ correspondence contained therein.[7]The Tribunal also had in front of it a witness statement for the Claimant and a witness statement in respect of Vince Macaulay; the Respondent’s managing director. Both of these witnesses were subject to cross examination and questions from the Tribunal.
Facts
[8]The Claimant was employed as an employee under a contract of employment which was at page 123 of the Claimant’s bundle of documents. He signed the contract of employment on 23 August 2017 and commenced at the Respondent’s training camp at the Queen Elizabeth Olympic Park on 8 September 2017 which was the start of his continuous service. The Claimant was employed as a professional basketball player, playing for the Respondent in the British Basketball League.[9]The contract of employment at page 123 of the bundle of documents contained some of the requisite information required by S.1 of ERA but the Claimant noticed that it did not contain the dates upon which his continuous employment began, did not contain terms and conditions relating to his hours of work , did not contain terms relating to holiday entitlement including public holidays and holiday pay, did not contain information relating to pensions and pension schemes and did not contain the principal place of work.[10]The Respondent in evidence accepted that the Claimant was an employee of the Respondent employed under a contract of employment. However, the Respondent could not explain satisfactorily why the contract provided to the Claimant failed to specify any of the above requisite requirements. It appeared that the contract provided to the Claimant was a proforma contract provided to all clubs in the British Basketball League which had been adapted for use by the Respondent.[11]In addition, the Respondent was not able to satisfactorily explain why the Claimant was not provided with paid holidays or paid holiday entitlement at the termination of his employment in respect of holidays not taken. The best the Respondent could say was that no professional basketball players were entitled to holiday entitlements. This appeared to the Tribunal to be a breach of the Working Time Regulations 1998 in that all, employees employed under a contract of employment are entitled to take holidays and to be paid any accrued holiday entitlement at the termination of their employment.[12]Under clause 29 of the Claimant’s contract of employment he was entitled to receive a monthly salary of £1800.00 net of tax, as well as a monthly accommodation allowance of £300.00 net of tax. The Respondent did not dispute this entitlement which was specified in the contract of employment, which was at page 123 of the Claimant’s bundle of documents.[13]In respect of the Claimant’s working hours, these would change week to week depending on the clubs and game schedule. On average, commonly he would train for two hours a day for five days and play one or two games a week. An away game would mean that he would be required to work anywhere between seven to eighteen hours, taking into account travel time and game time. The Claimant also coached a youth club on behalf of club for ninety minutes each week. The Tribunal accepted the Claimant’s evidence that he would on average work twenty hours per week.[14]On 3 January 2018, Mr Macaulay spoke to the Claimant about reducing his salary. He had gathered all the players together along with the assistant coaches and told them due to poor performance, the head coach had been dismissed and all of the wages of the basketball players would be reduced. Mr Macaulay said that this was a result of a sponsor pulling out due to a poor run of form by the club. Mr Macaulay then invited the players to have a one-to-one meeting in the café at the Queen Elizabeth park where the club played its home games.[15]During the meeting with the Claimant, Mr Macaulay told him that although he did not know by exactly how much, the Claimant’s salary would be reduced. He told the Claimant that if he was not happy with the proposal to reduce the wages he would pay the Claimant’s his salary for January and then he could leave the club. The Claimant told Mr Macaulay that he enjoyed playing for the club and that he was disappointed to hear of the situation. He asked Mr Macaulay to put what he had said in writing via an email. He said that he would speak to his family and friends about the situation and get back to him. The meeting lasted ten to fifteen minutes in total.[16]Mr Macaulay sent the Claimant an email on 3 January 2018 stating that he was proposing to reduce the Claimant’s salary by £200.00 a month (about 11%) from £1800.00 net of tax £1600.00 net of tax. This email was at page 232 of the Claimant’s bundle.[17]Although the Claimant appreciated the situation the club was in, he decided that he could not accept the cut to the salary that the club wished to impose because the cost of his rent and other day to day costs. The Claimant telephoned Mr Macaulay of 7 January 2018 to tell him that he did not agree to the reduction and sent him a follow up email confirming the same later that day. This email was page 234 of the bundle. The Claimant also let Mr Macaulay know what he was fit and available to play in the game against Sheffield Sharks scheduled for that day. The Claimant sent Mr Macaulay a text message to let him know that he had emailed him and to ask for his response. Mr Macaulay replied by text to confirm that he would not play the Claimant in the match against Sheffield Sharks.[18]On 8 January, the Claimant’s agent Mr Pascual sent Mr Macaulay an email to say that the Claimant would keep practicing and attending the games with the same professional attitude, no matter if he played or not and that he expected to be remunerated according to the original terms of the contract. Mr Macaulay replied on 8 January setting out the options for the Claimant which were either to take a pay cut or receive a one-month payment of ‘redundancy’. However, the Claimant’s view was that he had made an agreement in the contract about what he should be paid and he expected the club to honour the agreement.[19]During the following two weeks there was various email correspondence and text messages between Mr Macaulay and the Claimant, where the Claimant confirmed that he wished to practice and play his games as part of his contractual duties and Mr Macaulay refused to allow the Claimant to attend or practice any games that were scheduled. The Claimant during this period confirmed that he was fit and willing to do so.[20]Finally, on 28 January, Mr Joe Ikhinwin (the clubs captain) removed the Claimant from the clubs “WhatsApp” group which was a way of corresponding between the players in respect of team and club matters. This included when and where training would take place and the arrangements about games. Without being a member of the WhatsApp group, the Claimant would no longer know these details.[21]The Claimant emailed Mr Macaulay on 28 January 2018 to tell him that he had been removed from the WhatsApp group. Given that he had been removed from the group and because Mr Macaulay had over the previous weeks told him not to attend practice or games he told Mr Macaulay that despite this instruction he was still available to play for the club as well as attend training. Mr Macaulay did not respond to this email, which was at page 252 of the bundle of documents.[22]At the hearing, the Respondent confirmed that the Claimant had been paid up until December 2017 and that these payments included £1800.00 net tax per month, in terms of salary and £300.00 in respect of accommodation allowance. The Respondent confirmed that no wages or accommodation allowance was paid to the Claimant from January until the date of the Claimant’s resignation on the 14 February 2018.[23]As consequence of such failure, under clause 29(c) of the Claimant’s contract of employment the Respondent was required to pay the Claimant’s salary and accommodation allowance by no later than the fifth day of the following month. The Claimant realised on 5 February 2018 that he had not been paid his salary or accommodation allowance for January and he emailed Mr Macaulay on the same day to ask him why this had not been paid. This was at page 253 of the Claimant’s bundle.[24]Clause 29(c) gave the Respondent a further period of seven days to rectify the situation and pay the missing amounts. Mr Macaulay did not reply to the Claimant’s email of 5 February 2018 and as a consequence the Claimant decided to raise a formal written grievance with the Respondent about the unpaid wages for January as well as the unpaid accommodation allowance. He sent the grievance letter to Mr Macaulay on 7 February 2018 which was at page 255 to 258 of the Claimant’s bundle of documents.[25]Mr Macaulay did not acknowledge or respond to this grievance letter by 12 February 2018. As a consequence, the Claimant decided to email Mr Macaulay on 13 February to say that he was very concerned about this situation and asked to speak to him urgently to arrange for the payment of the salary and accommodation allowance owed to the Claimant for January 2018. This email was at page 259 of the bundle of documents. The Respondent did not arrange a grievance meeting or deal with the Claimant’s legitimate grievance in respect of failure to pay wages. The Respondent at the Tribunal hearing said that it did not need to this as through Mr. Macaulay had already been talking to the Claimant about the club’s difficult financial situation. As a consequence, it did not believe that it needed to arrange a grievance meeting. The Claimant had not given his prior consent to the Respondent withholding or deducting sums from his salary and accommodation allowance for January 2018 or at all.[26]The Claimant worked hard during his time at the club doing everything that was asked of him. He worked well with his team mates and got on well with everyone at the club. Mr Macaulay had not allowed the Claimant to undertake his job and had separated him from his teammates. The Claimant was unable to train and had not been paid for the efforts and work he put in. The Claimant believed the Respondent was treating him unfairly by not paying him his contractual wages and accommodation allowance. He was legitimately worried about what would happen to the rest of his season and whether he would be paid again. He was also worried that if this continued he would lose form and fitness for a lack of practice and game time. He was worried about his reputation being damaged as he was unable to explain his situation to others whilst under contract with the club.[27]Due to the missing pay, the Claimant had to reluctantly borrow money from his family as he could not afford his rent in London. The salary and accommodation allowance was his only source of income. As a result of this, he sent Mr Macaulay an email on 14 February 2019 attaching a letter in which he resigned claiming constructive dismissal. This was at page 261 to 267 of the bundle of documents. This set out the full reasons why the Claimant was resigning including constructive dismissal as well as a request for the Respondent to pay him his unpaid salary and accommodation allowance for January 2018 and the period from 1 to 14 February 2018, being the date on which the Claimant resigned and which was the effective date of termination. The main reason for his resignation was because he had not been paid by the Respondent which he found to be entirely unacceptable.[28]Clause 24 of the contract of employment at page 126 of the Claimant’s bundle of documents confirmed that if the club was guilty of a serious or persistent breach of the terms and conditions of the contract, the player was able to terminate the contract by serving a notice of termination to take effect after fourteen days, on the club.[29]Clause 22 of the contract also contained a clause which permitted the club to terminate the contract on fourteen days’ notice if the player was guilty of persistent gross misconduct or serious breaches of the rules of the club or provisions of the agreement.[30]On 16 February 2019, Mr Macaulay replied to the Claimant’s email and letter of resignation stating, “He did not accept the Claimant’s version of events and would revert.” Mr MaCaulay never reverted to the Claimant and as a consequence the Claimant commenced these proceedings.
Law
[31]S.13(1) ERA 1996 sets out the following: - 31.1 “an employer shall not make a deduction from a wage of a worker employed by him unless;31.1.1 the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the workers contract;31.1.2 the worker has previously signified in writing his agreement or consent to the making of the deduction”[32]S.207(A)(1) Trade Union and Labour Relations (Consolidation) Act 1992: “(TULR (C)A 1992” states that: - 32.1 “this section applies to proceedings before an Employment Tribunal relating to a claim by an employee under any of the jurisdictions listed under Schedule A2’.[33]The jurisdictions listed in Schedule A2 TULR (C)A 1992 include: -33.1S.23 of Employments Rights Act 1996 (unauthorised deductions and payments).33.2The Employment Tribunal Extension of Jurisdiction (England and Wales) Order 1994 (SIA994/1623) (Breach of employment contract and termination).33.3 S.207(A)(2) TULR (C) A 1992 states: - 33.3.1 “if, in the case of proceedings to which this section applies, it appears to an employment tribunal that33.4 the claim to which the proceedings relate concerns a matter to which a relevant code of practice applies; 33.5 the employer has failed to comply with that code in relation to that matter; 33.6 that failure was unreasonable; 33.7 the Employment Tribunal may, if it considers just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%”.[34]The approach an Employment Tribunal should take when considering a claim for constructive dismissal was summarised in the case of Kaur v Teaching Hospitals NHS (2018) EWCA CIV 978 as follows: - “In a normal case where an employee claims to have been constructively dismissed it is sufficient for a tribunal to ask itself the following questions:34.1 What was the most recent act (omissions) on the part of the employer which the employee says caused, or triggered his or her resignation?34.2 Has he or she affirmed the contract since that act?34.3 If not, was that act (omission) by itself a repudiatory breach?34.4 Did the employee resign in response to that breach?”[35]S.1 ERA requires the employer to provide an employee with written terms and conditions of employment which must contain requisite specified information.[36]S.38 Employment Act 2002 applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed Schedule 5 to the Employment Act 2002. Schedule 5 confirms unauthorised deductions (S.23 ERA) and payments owed in respect of breach of contract under the Employment Tribunal Extension of Jurisdiction Order 1994. Tribunals conclusions[37]In this case, the Respondent admitted that it did not pay the Claimant his wages for January and February. The reason for this was due to the fact that it could not afford to do so and attempted to renegotiate the wages and benefits for the Claimant along with other employees employed by the Respondent.[38]The Respondent accepted that the last payment made by the Respondent to the Claimant was on 4 and 8 January 2018 in respect of the period worked by the Claimant in December 2017. The Respondent instructed the accountant retained by it not to make the January wages and accommodation allowance payments to the Claimant and the Claimant was not paid wages and accommodation allowance for January and up to the date of his resignation on 14 February 2018. The total amount of these payments for January and February was £3,150.00.[39]The Claimant did not accept the Respondent’s reasons for failing to pay the Claimant his contractual entitlements and the Respondent’s failure to pay such entitlements was both a breach of contract and an unlawful deduction of the Claimant’s wages. The Respondent was under a misapprehension that he could stop paying the Claimant his contractual entitlements and it appeared that the Respondent conducted itself during this period without taking appropriate legal advice.[40]As stated above, the failure to pay wages and benefits that were contractually due and owing to an employee whereby an employee does not consent to a variation in his contract of employment would amount to a breach of contract and would also be an unlawful deduction of wages.[41]Had the Respondent taken appropriate legal advice at the relevant time it is likely that this advice would have confirmed that the Claimant should be paid the wages that were due and owing. If the Respondent did this, it would not have ended up in the position that it ended up in.[42]Nevertheless, the Respondent did act in the way that it did and this was in breach of the law. The Tribunal finds that this breach was due to a misapprehension of the law rather than a wilful attempt not to pay the Claimant what was rightfully owed to him.[43]Accordingly, the Tribunal uplifted the award by 15% and awarded the Claimant a total £3622.50 in respect of unlawful deductions of wages and breach of contract in respect of wages for January and February. The uplift in this regard was due to the Respondent’s failure to conduct a grievance meeting as required by the ACAS Code of Practice which the Claimant asked for and which the Respondent failed to undertake.[44]As stated above, this failure was due to a misapprehension of the law and the Respondent’s belief that it was discussing the Claimant’s contract via other negotiations that were ongoing at the time.[45]The Respondent’s failure to pay the Claimant his contractual wages and benefits also amounted to a constructive wrongful dismissal. The Respondent’s failure to pay the Claimant his wages and benefits triggered his resignation after the Claimant lodged a grievance by letter dated 12 February 2018. The Respondents failure to deal with that grievance and/or rectify its breach by paying wages and benefits lawfully due and owing pursuant to the contract amounted to a repudiatory breach of contract which the Claimant acted upon two days later (14 February) by resigning and thereby not accepting the breach.[46]A failure to pay wages is a fundamental breach of contract entitling the Claimant to resign which the Claimant did. As a consequence, the Respondent was not able to make a counterclaim for breach of contract as it was in breach of contract itself. At the point of the Claimant’s resignation due to a fundamental breach of contract the parties no longer owed any contractual duties to each other. As such, after 14 February 2018 the Claimant could not have been in breach of contract by taking up employment with another company. Accordingly, the Respondent’s counterclaim against the Claimant was dismissed.[47]The Claimant argued that he should be compensated for the remainder of his contract of employment which was stated to be for an entire season and that he should receive wages and benefits up and including 20 May 2018 which was the end of the season. The Claimant argued that there was no general right to terminate the contract of employment on notice and therefore the constructive wrongful dismissal of the Claimant on 14 February meant that the Claimant should be paid for the rest of the fixed term contract, namely until the end of the season on 20 May 2018 being the final game of the season.[48]However, the Tribunal did not accept this argument. The contract of employment contained Clause 24 which confirmed that the Claimant had the right to terminate the contract of employment on the giving of fourteens days’ notice in respect of a serious breach of contract by the Respondent.[49]Clause 24 stated “if a club is guilty of a serious or persistent breach of the terms and conditions of the contract, the player may terminate this agreement by serving a notice of termination to take effect after fourteen days on the club’. This in the Tribunals mind was a specific to the circumstances of this case in respect of failure to pay wages and benefits.[50]Accordingly, the Tribunal awarded the Claimant fourteens day loss of wages for the notice period in the sum of £1050.00 to which an uplift of 15% in the sum of £157.50 was awarded and the total amount of this payments is £1207.50.[51]The Tribunal noted that the Respondent acted through ignorance and without malice, believing that that it was following the correct course of action in respect of attempting to vary the Claimant’s contract of employment. Unfortunately, the Respondent failed to follow the correct procedure and this was more due to ignorance then any wilful or egregious actions of the Respondent.[52]It was clear to the Tribunal that the contract at pages 123 was an attempt by the Respondent to provide written particulars of the main terms and conditions of employment to the Claimant. However, these terms were deficient and did not comply with the requirements of S.1 ERA 1996. It was clear to the Tribunal that the Respondent attempted to follow the guidance given to it by its professional association but unfortunately the proforma contract did not comply with the requirements of S.1 ERA.[53]The contract was absent of some important particulars such as holiday entitlement and holiday pay, there was no reference to the date of the start of the continuous employment and no reference to any pension entitlement or pensions scheme applicable to the Claimant. There were also other failures including the failure to state the principal place of work and whether the Claimant was required to work outside the United Kingdom for more than one month. The Tribunal found this to be a failure to comply with the S1 ERA and accordingly the Claimant was entitled to a remedy under s38 of the EA 2002. The Tribunal exercised its discretions and due to the Respondent’s ignorance of the law and its effort to follow what it believed to be the law, the Tribunal awarded the Claimant two weeks in the sum of £1050.00.[54]With the regard to holiday pay, the Respondent’s position was that although the Claimant was an employee he was not entitled to holiday as professional basketball players did not take holiday. Unfortunately for the Respondent this was not the legal position. A worker is defined under Regulation 2(1) of the Working Time Regulations 1998. The Claimant was clearly a worker and indeed was an employee from 8 September 2017 to 14 February 2018 being the date of his resignation.[55]It was accepted that the Claimant did not take holiday during this period of time and the Tribunal found that the Claimant worked an average of twenty hours per week. The Claimant’s holiday entitlement should be pro- rated to reflect his twenty hours per weeks (twenty hours divided by forty hours) and the entitlement claimed by the Claimant in his Schedule of Loss should be divided by two. Accordingly, the Claimant is awarded £581.54 in respect of holiday entitlement which is to be uplifted by 15% (£87.23) and the Claimant is awarded a total payment of £668.77 in respect of unpaid holiday entitled at the termination of his Employment.
Background
[1]The Tribunal found on 13 March 2019 that the Claimant was constructively wrongfully dismissed by the Respondent, the professional basketball club for which he played in the 2017/18 season. The Respondent also made unlawful deductions from his wages for one and a half months from the start of 2018, failed to pay him holiday pay at the termination of his employment and failed to provide him with statutory written particulars of the terms and conditions of his employment.[2]Following the promulgation of the Tribunal Judgment, the Claimant appealed to the Employment Appeal Tribunal on two grounds, namely, that the Tribunal erred in law in limiting the Claimant’s damages for repudiatory breach of contract to the 14-day period referred to in clause 24 of the employment contract and Tribunal erred in law in halving the Claimant’s entitlement to holiday pay on the basis of the number of hours he worked on average per week. There was no appeal by the Respondent club.[3]Judge Mansfield QC, sitting alone as a Deputy High Court Judge in the Employment Appeal Tribunal (EAT) allowed the Claimants appeal on both grounds. The EAT’s determination on Ground 2 (holiday pay) was not relevant to the present hearing, as, having allowed the Claimants appeal, the EAT proceeded to substitute its decision for that of the Employment Tribunal, and ordered the Respondent to pay the Claimant £1,337.54. That decision finally disposed of Ground 2. In respect of Ground 1, however, Judge Mansfield QC ordered that: “On Ground 1, the assessment of damages for wrongful dismissal shall be remitted to the same Employment Tribunal for rehearing unless in the view of the learned Regional Employment Judge factors emerge which render such an arrangement impracticable or impossible in which case the matter be remitted to be heard by a differently constituted Tribunal as directed by the Regional Employment Judge. Such damages are to be assessed in accordance with the principles set out in the Employment Appeal Tribunal's judgment.”[4]Those principles can be summarised as follows: The starting point for an award of damages for wrongful dismissal in the case of a fixed-term contract would be “what the innocent party, the employee, would have received over the remainder of the fixed term period”. In this case, “the Respondent had no right to terminate the contract before the end of the fixed term period”. In this case, termination of the employment contract was a constructive wrongful dismissal. In those circumstances (i.e., acceptance of repudiation at common law), “it was appropriate for the ET to go on to determine damages in the ordinary way…The enquiry for the ET should have been what loss did the Claimant suffer from being deprived of the right to continue to be employed for the remainder of the fixed term”.[5]On disposal, the EAT felt it was unable to conclude what the result would have been relying only on the Employment Tribunal’s findings supplemented only by undisputed or indisputable facts. Certain relevant facts were clear and/or undisputed: It was clear from the Employment Tribunal’s judgment that “the rate at which wages would have accrued, and the accommodation allowance would have accrued were not in dispute between the parties”. Further, it was an undisputed fact that the end of the season was on 20 May 2019. However, “the real difficulty in this case is mitigation”. The EAT explained: “The Claimant accepts that he was under a duty to mitigate his loss during the period, and he gives credit for what he says in his schedule of loss were the sums that he earned. The Respondent challenged the mitigation position in its counter schedule of loss on two grounds. The arguments raised may or may not have been good ones but the problem for the EAT was that the ET made no findings whatsoever as to the Claimant's earnings, and no findings whatsoever as to whether or not his alterative earnings were reasonable mitigation or whether other or steps should have been taken.” On this basis, the EAT remitted the matter back to the Employment Tribunal “to make findings on the proper basis as to loss for the remainder of the fixed term”. Remitted Remedies Hearing at the Employment Tribunal[6]On the basis of the matters set out above, there was only one issue of limited scope to be determined by the Employment Tribunal at this remitted hearing. This was recognised by the Tribunal’s letter of 5 January 2021, which stated: “The Tribunal will consider the question of the assessment of damages for the Claimant from 14 February 2018 to 20 May 2018; the Tribunal will consider submissions from both parties on this question but it will not hear any evidence, as the evidence was presented at the original hearing on 14 and 15 February 2019.” As such, the Tribunal had already heard all the relevant evidence, and was only required now to determine, on the basis of that evidence and the principles set out by the EAT, what loss was suffered by Mr Hall by his constructive wrongful dismissal over the period from 14 February 2018 to 20 May 2018.[7]At the hearing the Tribunal had before it the original bundle of documents prepared by the Claimant which contained the substantive documentation as well a supplementary shorter bundle of documents prepared by the Respondent. The Tribunal also had in front of it the witness statement for the Claimant and a witness statement in respect of Vince Macaulay, the Respondent’s managing director. In addition, the Tribunal had before it a supplementary bundle produced for this remedy hearing by the Claimant, a bundle of authorities produced for this remedy hearing and the Claimant’s written submissions. Tribunal’s Conclusions[8]At the beginning of the hearing the Claimant made an application under rule 47 of the Employment Tribunal Rules of Procedure for the hearing to proceed in the absence of the Respondent. This rule permits the Tribunal to proceed in the absence of a party if the Tribunal considers any information that is available to it after any enquiries that may be practicable about the reasons for the Respondent’s absence.[9]The Tribunal decided to proceed in the Respondents absence on the basis that the Claimant had waited for three years since his dismissal for a conclusion to these proceedings and should not be prejudiced any further for the unexplained and justified absence of the Respondent at the hearing. Furthermore, the Tribunal inferred from the Respondents absence from the hearing that it did not intend to participate especially given the Respondents debarral from the Employment Appeal Tribunal proceedings for failure to participate in those proceedings. In addition, the Employment Tribunal file was reviewed and it was noted that the case was originally listed for the remitted remedies hearing on 25 January 2021 and was postponed on the application of the Respondent because the managing director was out of the country. The Tribunal consulted with the parties to arrange the current remedy hearing and the Respondent indicated that it would be able to attend it. It was noted that there was no application made by the Respondent for a postponement of the hearing and the Tribunal was satisfied that the Respondent was notified of the hearing. The Tribunal waited for 30 minutes at the commencement of the hearing to allow the Respondent to connect to the hearing remotely during which time the Claimant’s solicitor had made email and telephone contact with the Respondent’s managing director to inform him to make an urgent connection with the hearing. No such connection was made and indeed no contact was made at all to the Tribunal to explain the Respondents absence.[10]With regard to the remaining remedies issue, as the EAT observed, the rate at which Mr Hall’s wages and accommodation allowances would have accrued “were not in dispute between the parties”. The real issue for the Employment Tribunal, therefore, was mitigation.[11]The starting point was that the burden of proof was on the wrongdoer – here the Respondent – to demonstrate that the Claimant had failed to mitigate his loss: Cooper Contracting Ltd v Lindsey [2016] ICR D3; Wilding v British Telecommunications plc [2002] ICR 1079. The Respondent’s case on mitigation appeared in its CounterSchedule of Loss at paragraph 7: “The claimant’s suggestion of mitigating his losses by signing for another club are challenged. On the basis that the claimant had refused a very generous and conciliatory offer which would have allowed him to receive a significant pay off from us as well as sign for his previous club he would have made significantly more money in the same period. Our suggestion is that the claimant took advantage of a situation in Glasgow due to a shortage of players during the Commonwealth Games to make more money whilst also claiming from us.”[12]Further, in its Written Closing statement before the Employment Tribunal, the Respondent said: ‘Once Mr Hall had terminated his agreement with the Respondent, he signed for another club “almost immediately”; “We accept that Mr Hall should be paid for the period January through to the 19th of February when he signed for his new club but not that he should be paid any further as he made himself unemployable by working elsewhere whilst also being paid to do that work by his new employers”. “Is it reasonable to be paid twice for the same job? In effect this is what would happen if the Claimant's argument were to succeed, not just that but in effect an identical contract”.[13]The Tribunal found that the Respondent’s case on mitigation was thin and vague based on the above statements. If anything, it supported the Claimant’s position – pointing out that he, prudently, and in line with his obligations to mitigate his loss, sought alternative employment promptly, and was able to secure this within a week of his resignation. That employment then commenced on 23 February 2018.[14]Insofar as the Respondent relied on any conduct or offer before the Claimant’s dismissal and suggested that the Claimants’ failure to accept any such offer constituted a failure to mitigate, the Tribunal found that it was not permitted to do so: the duty to mitigate arises only after dismissal: Shindler v Northern Raincoat Co [1960] 1 WLR 1038, 1048.[15]The Tribunal found that beyond bare assertion, the Respondent had not led an evidence-based case on failure to mitigate. The Respondent did not put its case on mitigation to the Claimant in cross examination, nor did it seek in cross-examination to undermine the Claimant’s evidence on the steps he took to mitigate his losses.[16]By contrast, the Tribunal accepted the Claimants case on mitigation which was clear: He resigned on 14 February 2018, and took prompt steps to mitigate his loss, commencing the next day (by speaking to a former team-mate): He signed his contract with Glasgow Rocks on 20 February 2018, which commenced on 23 February 2018: Mr Hall’s contract with Glasgow Rocks was for the remainder of the season, under which Mr Hall would be paid £3,800 net, paid in instalments. Aside from his witness statement, Mr Hall also made this clear in his Schedule of Loss; and in his Written Closing statement. The Tribunal found that the Claimant acted responsibly and promptly to mitigate his loss. The Tribunal also found that the Respondent could not complain about the level of the Claimant’s pay at his new employer: while he received £1,800 net of tax in salary (plus benefits) from the Respondent, he received £3,800 net from Glasgow Rocks – approximately £1,267 net per month. The Tribunal found that it was not unreasonable for the Claimant to accept this in the context of a mid-season transfer. Moreover, the Claimant’s evidence on mitigation, including any arguments as to reasonableness, were not challenged by the Respondent in cross-examination or otherwise and the Respondent did not make any oral submissions on mitigation in its closing oral submissions.[17]The Tribunal reminded itself that that burden was on the Respondent to demonstrate that the Claimant had failed to mitigate his loss, not on the Claimant to prove that he had. For the reasons set out above, the Tribunal concluded that insofar as he was under a duty to take reasonable steps to mitigate his losses, that duty was discharged by signing with Glasgow Rocks on 20 February 2018.[18]The Tribunal also found that during his employment at the Respondent the Claimant received the benefit of a health club membership valued at £57.95 per month. This was a point on which the Employment Tribunal did not make a factual finding either way in its original judgment. On that factual question, it was the Claimant’s evidence that he received health club membership as part of his employment at the Respondent, valued at around £58 per month. The Respondent’s case on the issue was presented in its Counter Schedule of Loss, that the value of the Claimant’s health club membership should not be included in an award “as was provided by sponsor”. Notably, the Respondent did not challenge that the Claimant enjoyed the benefit as a result of his employment at the Respondent, but only who in fact made the payment. This latter point was irrelevant – even if the Respondent did not make the payments; they ceased as a result of the Claimant’s dismissal; and were thus losses attributable to the Respondent’s repudiatory breach. The Claimant’s evidence on this was unchallenged by the Respondent under cross-examination, and accordingly the Tribunal accepted the Claimant’s evidence.[19]Based on a finding that the Claimant’s employment with Glasgow Rocks was not unreasonable mitigation, the Tribunal found that applying the 15% ACAS uplift originally awarded by the Tribunal the damages suffered by the Claimant from 14 February 2018 to 20 May 2018 constituted the following: Losses: Wages and accommodation allowance (£2,100 monthly = £484.62 weekly) x 13.57 weeks = £6,576.29 (net) Health club membership (£57.95 monthly = £13.37 weekly) x 13.57 weeks = £181.47 (net) Total loss (pre-mitigation) = £6,757.76 Total loss (post-mitigation) = £6,757.76 - £3,800 = £2,957.76 Total loss (post-mitigation, post-uplift) = £2,957.76 x 1.15 = £3,401.42 The Claimant has successfully sought recovery of the amount of £1,207.50 via enforcement action in the civil courts. He is awarded his total outstanding loss (post-mitigation, post-uplift) of £2,193.92.