Ms J Jurgaityte v City and Essex Ltd: 3202477/2018
REASONS
[1]The Tribunal’s Liability Judgment promulgated on 2 January 2020 was that the Claimant had been unfairly dismissed. The matter became before the Tribunal on 9 March 2020 to determine the remedy due to the Claimant. The Remedy judgment has already been sent to the parties.[2]The Tribunal heard evidence from the Claimant and had a bundle of documents prepared by the Respondent. The parties agreed on the basic award due to the Claimant.[3]The Claimant was employed by the Respondent between 20 May 2014 and 31 October 2018. The Claimant was 43 at the time of her dismissal. The parties agreed that her basic award was £2,169.20 which included the Respondent’s contribution towards her pension. Compensatory Award[4]The Tribunal had to decide on the Claimant’s compensatory award.[5]The Tribunal drew the following conclusions from the evidence at the remedy hearing.[6]The Claimant found alternative employment after six months and three weeks. Her claim was for 6 months loss of wages. Law[7]The Tribunal applied the following law in deciding on the remedy due to the Claimant in her successful unfair dismissal claim. The Claimant did not seek reinstatement or re-engagement. She had secured alternative employment. In those circumstances, the appropriate remedy for a successful Claimant in a complaint of unfair dismissal is a monetary award. The remedy award will consist of two elements: a basic award and a compensatory award. As the basic award agreed between the parties in this case, here is the law relating to the basic award. Compensatory Award[8]This is set out in Section 123 of the Employment Rights Act 1996 (ERA).[9]The compensatory award is intended to compensate the Claimant for losses arising out of her dismissal, so far as the loss is attributable to actions taken by the Respondent. It should not be used to punish the Respondent.[10]Such losses that can be compensated would include not just wages lost due to being unfairly dismissed but also any additional benefits attached to the employment that has been lost i.e. company car, health benefits, pension, travel allowances etc. In addition, the Tribunal can compensate the Claimant for any additional expenses occasioned by the loss of employment i.e. expenses incurred in seeking alternative employment. The compensatory award can take into account losses that extend into the future.[11]The Tribunal will need to make findings of fact based on the evidence before it, in order to determine how much and for how long it would be just and equitable to award the Claimant compensation for such future losses.[12]The Claimant is under a duty to mitigate her loss, which is a duty on the successful Claimant to make diligent searches for alternative employment dismissal. The Tribunal would need to consider whether this had been done and what conclusions it can draw from the evidence provided by both parties. The overriding duty imposed on the Tribunal is to award what is just and equitable in the circumstances. The starting point in assessing compensation for loss of earnings for unfair dismissal is:(1) whether the loss claimed was occasioned or caused by the dismissal;(2) whether it was attributable to the conduct of the employer;(3) if so, was it just and equitable to award compensation.[13]In determining whether the employee has mitigated her loss, the circumstances of the particular employee must be taken into account. The question is simply whether the particular employee has taken reasonable steps to find alternative employment. In the case of Bessenden Properties Limited v Corness 1974 IRLR 338, CA, Roskill LJ stated that; “questions of mitigations are questions of fact. When one party seeks to allege that another party has failed to mitigate a loss, the burden of proof is upon the party making the allegations”. It is the duty of an employee who has been dismissed to act as a reasonable person would do if they have no hope of seeking compensation from their previous employer.[14]In the later case of Cooper Contracting Limited v Lindsey UK EAT/0184/15 (22 October 2015, unreported); Langstaff P cautioned that a phrase such as “a duty to take all reasonable steps” is likely to lead to an erroneous conclusion if too generally applied. It is for the wrong-doer to show that the Claimant acted unreasonably in failing to mitigate.[15]The most recent statement on this issue is by HHJ Eady QC in Singh v Glass Express Midlands Limited UK EAT/0071/18 (15 June 2018, unreported) in which she stated that the correct approach to the question of mitigation is follows: 15.1. The burden of proof is on the wrong-doer; a Claimant does not have to prove they have mitigated their loss. 15.2. It is not some broad assessment on which the burden of proof is neutral; if evidence as to mitigation is not put before the Employment Tribunal by the wrong-doer, it has no obligation to find it. That is the way in which the burden of proof generally works; providing information is the task of the employer. 15.3. What has to be proved is that the Claimant acted unreasonably; the Claimant does not have to show that what they did was reasonable. 15.4. There is a difference between acting reasonably and not acting unreasonably. 15.5. What is reasonable or unreasonable is the matter of fact. 15.6. The question is to be determined taking into account the views and wishes of a Claimant as one of the circumstances, but it is the Employment Tribunal’s assessment of reasonableness, and not the Claimant’s, that counts. 15.7. The Employment Tribunal is not to apply too demanding a standard to the victim; after all, they are the victim of a wrong and are not to be put on trial as though the losses were their fault; the central cause is the act of the wrong-doer. 15.8. The test may be summarised by saying that it is for the wrong-doer to show that the Claimant acted unreasonably in failing to mitigate. 15.9. In cases in which it might be perfectly reasonable for a Claimant to have taken on a better paid job, that fact does not necessarily satisfy the test; it would be important evidence that may assist the Employment Tribunal to conclude that the employee has acted unreasonably, but it is not, in itself, sufficient.[16]Section 124A of the ERA states that when the award of compensation for unfair dismissal falls to be reduced or increased under Section 207A of the Trade Union and Labour Relations Consolidation Act 1992 (TULR(C)A (effect of a failure to comply with the code: Adjustment of awards) the adjustment shall be in the amount awarded under Section 118(1)(b) ERA and shall be applied immediately before any reduction under Section 123(6) or (7) ERA.[17]Section 207A of the TULR(C)A applies to proceedings before an Employment Tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2, which includes unfair dismissal. It states that if, in the case of proceedings to which the Section applies, it appears to the Employment Tribunal that(a) the claim to which the proceedings relate concern the matter to which a relevant Code or practice applies and(b) the employee has failed to comply with that Code in relation to that matter, and(c) the failure was unreasonable.[18]The Employment Tribunal may, if it considers it just and equitable in order of the circumstances to do so, reduce any award it makes to the employee by no more than 25%. Conclusions drawn from the evidence at the remedy hearing and from the liability hearing as far as it related toRemedy
[19]The Claimant is Lithuanian. English is not her first language and the Claimant is not a fluent English speaker.[20]Part of the Tribunal’s liability Judgment was that the Claimant had been diagnosed with breast cancer and had treatment for the same in 2014. There were lasting effects of that treatment on the Claimant’s health for some years thereafter. It is likely that the treatment and/or the psychological effects of it and/or the cancer affected the Claimant’s health leading to her absences which triggered the procedures which led to her dismissal. The Tribunal had some medical evidence to that effect and concluded the same from the Claimant’s live evidence at the liability and remedy hearings and from comments made in disciplinary hearings. The Respondent did not appeal the liability Judgment.[21]The Claimant’s evidence at the remedy hearing was that she continues to attend hospital for mammograms and that she had a forthcoming genetic test which would identify whether she had the gene that would make her susceptible to reoccurrence of her breast cancer.[22]The Claimant’s evidence at the Remedy Hearing was that she made serious efforts to find work as a cleaner after her dismissal. She replied to some adverts on line and that she went to various places in Canary Wharf including HSBC and gave her CV to reception to pass on to the cleaning managers.[23]Her evidence was that some employers need good English from their employees and that her English was not good. She believed that this had stopped her from getting a job. When she went to various places in Canary Wharf to ask whether they had vacancies, they asked her about her language skills and they also asked her why she left the job. She told them that she had been dismissed because she had a lot of sickness absences. She believed that those factors contributed to her not being offered work.[24]The Tribunal did not agree with the Respondent that the Claimant had poorly utilised the time available to her to get a new job. The Respondent submitted that in making unsolicited applications for work she was “spamming”, which was somehow to her detriment.[25]It was the Respondent’s submission that as it frequently took staff on by word of mouth, she ought to have found work without a reference within the 6 months. However, no evidence was produced to that effect as it was said by the Respondent in its submissions.[26]The Respondent provided some printouts from the Indeed jobs website showing the availability of cleaning positions in the Thurrock and London areas. It is not clear what time periods all those adverts covered but some were advertised after the Claimant began working for Amazon. In its counter schedule, the Respondent submitted that the Claimant should be awarded three months maximum loss of earnings as it was the Respondent’s submission that the Claimant could have obtained Agency work and/or salaried employment as a cleaner within that time.[27]The Claimant’s evidence was that there were not many jobs in Tilbury Town where she lives and that initially after her dismissal she looked for work in the Canary Wharf area as that was the area she was used to and she knew that there are lots of offices that require cleaning. She walked around the Canary Wharf area handing out her CV and speaking to people to see whether it was possible for her to get work or an interview.[28]The Claimant was worried about the reference that the Respondent would provide for her.[29]When she found out that the Amazon warehouse local to her in Tilbury would soon be recruiting, she focused her efforts on finding work there. Amazon offered its recruitment test in the Lithuanian language which was a bonus for her. The Amazon Warehouse also has Lithuanian speaking supervisors. Those facts meant that this was an ideal place for the Claimant to work because not only would she be able to use her mother tongue at work but it is also near to her home and therefore would reduce the amount of travel required to get to work and would reduce her fatigue, which was an issue with her work at the Respondent as she was frequently tired. The process to obtain secure employment with Amazon required her to go through a few steps. She had to initially complete a form and wait for a date for an interview and once she got through that, she started work.[30]She began working for Amazon on 21 May. The Claimant works a 10-hour shift there, four days a week.[31]The work at Amazon is hard work but it is full-time work, which is what she wanted.[32]The Claimant confirmed that she remembered receiving the letter notifying her that she had been dismissed and that it informed her of a right of appeal. However, the Claimant considered that because of the way she was treated at the disciplinary hearing in that she was not listened to and the decision was made so quickly, she was unlikely to get a fair hearing. She did not feel confident to write a letter of appeal. It is likely that her partner, Mr Balsys assisted her in completing the ET1 form that she submitted to the Tribunal in December 2018. He also assisted her in the preparation of her witness statement for the hearing and in presenting her case at the Tribunal hearing.[33]The Claimant’s evidence was that she did not appeal her dismissal because she did not believe that she would have a chance of success and that even after her dismissal when she contacted ACAS, the Respondent did not want to enter into the conciliation process.[34]The Tribunal considered all the evidence put before it. The Tribunal considered that although the Claimant did not ask for an interpreter during the internal hearings and did not need one at the Tribunal hearing, that did not mean that she was fluent in English or that she felt confident making written applications for work immediately after her dismissal, given her experiences at the Respondent.[35]However, she did her try to obtain new work. It was not ‘spamming’ to go to different offices to drop off her CV and see if there was a possibility of work. It is this Tribunal’s judgment that the Respondent held contradictory positions in their case at the remedy hearing. On one hand, it stated that the Claimant’s strategy of giving out her CV without waiting for an advertised vacancy was ‘spamming’ and a waste of time and showed that she had not mitigated her loss. On the other hand, it was also its position that it was in the habit of employing cleaners based on ‘word of mouth’ and that it would not have been difficult for her to get a job without a reference. The Claimant was doing exactly what would have got her a job without a reference or without an advert. By dropping her CV off, making direct contact and speaking to people, she hoped to make a connection which could have resulted in her being given a job through word of mouth. It was ultimately unsuccessful but that does not mean that it was not a reasonable thing for her to do.[36]In this Tribunal’s judgment, the Claimant’s decision to walk around Canary Wharf distributing her CV was diligent and cannot be faulted given that she does not feel confident in writing and speaking English. It made sense for her to think that the personal approach might be more successful than the written approach. It is a matter of speculation as to why that approach did not succeed. It could have been her fluency in English or the fact that there were not any vacancies at the time or because the Claimant had been dismissed from her last job. Those are all factors operating against her at the time.[37]She could not have been certain that any reference provided by the Respondent would be favourable to her. The Claimant’s dismissal was unfair and because she believed she had been unfairly treated, it was reasonable for her not to have been confident that the Respondent would provide her with a fair reference. I accepted the Claimant’s evidence that she made efforts to find work in the Canary Wharf area immediately after the termination of her employment as that is where she had been working up until the termination of her employment. In addition, there was not sufficient work in her local area. I find it likely from her evidence even though she did not produce lots of documentary evidence that she did search for work on-line. The Claimant was without income and my judgment is that she was desperate to find alternative employment. The evidence she produced in the Tribunal hearing related to April and May. It does mean that that was the only time she searched for work.[38]She also tried to get work locally. She secured work at Amazon which she started in May. Once she started on the Amazon process, it is likely that she focused her attention there. Her search for employment locally led her to employment with the Amazon.[39]The vacancies that the Respondent produced from the Claimant’s local area related to the period after the Claimant started work at Amazon. There are only a few jobs. The Claimant is well placed at Amazon, it would not be reasonable for her to leave that job to pursue one of the jobs that the Respondent down loaded from the Indeed Website as there would be no guarantee that she would get one of those jobs. The evidence at the liability hearing was that the Claimant relied heavily on the Lithuanian supervisor for support and interpreting during her employment. As she was able to take the test at Amazon in Lithuanian and she knew that there would be Lithuanian supervisors at Amazon, it was reasonable for her to put all her efforts into securing employment at Amazon. This is a full-time, local and reasonably paid job.[40]In this Tribunal’s judgment, the Claimant made reasonable efforts to find alternative work by knocking on doors and approaching businesses in Canary Wharf and elsewhere after her dismissal. She sensibly put in an application to Amazon as it is near to her home and because it would be accessible in terms of language and close proximity to her home. Accommodation is made for Lithuanian speakers in terms of the entry test and also in terms of supervision at work. This would have made the job especially attractive and suitable to the Claimant given that she had difficulty in communicating with the Respondent and depended heavily on the supervisor who spoke her language in meetings with her employer.[41]The Respondent has failed to prove that the Claimant did not make reasonable efforts to find alternative employment. It is this Tribunal’s judgment that she did mitigate her loss.[42]It is therefore this Tribunal’s judgment that the Respondent should pay the Claimant loss of wages from the termination of employment to the start of employment at Amazon. It took the Claimant six months and three weeks to find alternative employment and the Tribunal’s judgment is that she should be compensated for exactly six months or 26 weeks of that period.[43]The Tribunal next considered whether it was just and equitable to deduct the maximum amount of 25% from the Claimant’s compensation in relation to her failure to appeal against the dismissal.[44]The Tribunal considered the way in which the Claimant was dismissed. At the dismissal meeting, the manager did not discuss matters with the or listen to her but made a very quick decision that her employment should be terminated. Based on her experience at that meeting, the Claimant concluded that if she appealed, she was unlikely to get a fair hearing. She also felt disadvantaged by English not being her first language and felt unable to write a letter appealing against her dismissal. She had been told in the dismissal letter that she had to submit her appeal in writing. The Claimant can speak enough English to be understood at work but she was not fluent and found writing English difficult. The Tribunal takes judicial notice of the fact that someone who can get by in spoken English may feel daunted by the prospect of writing a formal official letter to an employer in English.[45]The Tribunal can deduct up to maximum of 25% for failure to appeal and comply with procedures in breach of the ACAS code and it was the Respondent’s submission that the full 25% should be deducted. The Tribunal understood the reason for her failure to appeal but there was a 10% chance that she could have asked Mr Balsys for assistance in writing a letter of appeal. In this Tribunal’s judgment, it is reasonable, fair and just to deduct 10% from her compensatory award to reflect her failure to appeal against her dismissal. It is impossible to know the outcome of such an appeal and it is highly likely that the Claimant’s appeal would have failed and she would still have been dismissed but, it is also correct that the Claimant was aware of a right of appeal and failed to exercise it or to ask Mr Balsys to assist her in doing so.[46]It is this Tribunal’s judgment that the Claimant mitigated her loss. It is also this Tribunal’s judgment that her compensatory award should be reduced by 10% to reflect her failure to appeal against her dismissal. Remedy[47]The Claimant is entitled to the following remedy: The Claimant’s dates of employment are 20.05.2014 – 31.10.2018. Her date of birth is 19.08.1975 Gross salary per week was £408 (£333.84 net) The Respondent contributed 2% of gross salary to her pension Basic Award: (3 years under 41 years of age at 1 week’s wages and 2 years over 41 years of age at 1.5 week’s wages) = 5 week’s wages 5 x £408 £2040.00 5 x £25.84 (pension) £129.20 £2,169.20 Compensatory Award: 6 months loss of wages = 26 x 333.84 £8,679.84 Plus 6 months’ pension contribution 6 x £25.84 £155.04 £8,834.88 Less 10% (section 124A Employment Rights Act 1996) £883.48 £7,951.40 Plus compensation for loss of statutory rights £350.00 Total due to Claimant: £350.00 + £7,951.40 + £2,169.20 = £10,470.60[48]The Respondent is ordered to pay the Claimant the sum of £10,470.60 as her remedy for her successful complaint of unfair dismissal.[49]There is no recoupment as the Claimant claimed but did not receive any State Benefits.[50]The Respondent is ordered to pay the Claimant the total remedy of £10,470.60.