Mr D M H Mbah v BUPA Care Services Ltd: 3303649/2024
JUDGMENT
The complaint of unlawful deduction from wages was not presented within the applicable time limit. It was reasonably practicable to do so. The complaint of unlawful deduction from wages is therefore dismissed. Employment Judge Davidson 23 September 2024 Sent to the parties on: 3 December 2024 For the Tribunal Office: Case Number: 3303649/2024 EMPLOYMENT TRIBUNALS Claimant: Mr D M H Mbah Respondent: BUPA Care Services Limited Heard at: Reading On: 9, 10, 11 and 12 September 2025 Before: Employment Judge Gumbiti-Zimuto Members: Mrs M Harris and Mr D Wharton Representation Claimant: In person Respondent: Ms B Clayton, counsel RESERVED JUDGMENT[1]The claimant was unfairly dismissed.[2]The claimant contributed to his dismissal, the Tribunal consider that a reduction of the compensatory award of 50% is just and equitable.[3]The claimant was wrongfully dismissed.[4]The claimant’s complaints of direct discrimination on the grounds of race, direct discrimination on the grounds of religion or belief, harassment related to race, harassment related to religion or belief, and victimisation are not well founded and are dismissed.[5]A remedy hearing shall take place on the 5 December 2025. The hearing will take place at the Reading Employment Tribunal Hearing Centre, 30-31 Friar Street, Reading RG1 1DX, commencing at 10 am. The remedy hearing will be a hybrid hearing a CVP link will be sent to the parties before the date of the remedy hearing. Approved by: Employment Judge Gumbiti-Zimuto 15 September 2025REASONS
[1]In a claim form presented on 12 March 2024 the claimant made complaints of unfair dismissal, direct race discrimination, direct discrimination on the grounds of religion and belief, harassment related to race, harassment related to religion and belief and victimisation.[2]The claimant gave evidence in support of his own case. The claimant had not produced a witness statement as directed by the tribunal in case management orders made on 23 September 2024.[3]On 31 July 2025, the respondent asked that the claim be struck out because the claimant had deliberately chosen not to engage with the process or the tribunal’s orders and had not participated in disclosure or provided documents requested, including those relating to mitigation. The respondent considered that the claimant had not been actively pursuing his case. That application was put before Employment Judge Quill who directed that if at the final hearing the claimant does not wish to give evidence then he is not compelled to do so. If he does wish to give witness evidence, then his evidence in chief will be that which is contained within the ET1 only. The claimant was at liberty to make an application for relief from the sanction at the final hearing, to be decided by the Tribunal hearing the case.[4]The claimant’s ET1 document is a handwritten document which was presented at the Employment Tribunal on 12 March 2024. In section 8.2 of the claim form the claimant set out details of his claim. The claimant set out further matters relating to the losses that he suffered in section 9.2 of the claim form. The claimant attached to the claim form a number of other documents including his letter of appeal and photographic copies of WhatsApp messages passing between the claimant and the respondent’s employee, Anabelle Abad. All these documents we have taken as the claimant’s evidence for the purpose of this hearing.[5]The respondent relied on the evidence of Sarika Kunwar, Anabelle Abad, Laxmi Bankar, and Grace Maswaya. The respondent’s witnesses produced written statements which were taken as their evidence in chief.[6]The Tribunal was also provided with a bundle of documents containing 340 pages. We were also provided with additional documents, a rota from March 2020, and text messages passing between the claimant and Anabelle Abad after the evidence was concluded. These latter documents were not put to any witnesses but were provided by the respondent’s representative at the request of the Tribunal.[7]From these various sources the tribunal made the following findings of fact in this case.Findings of fact
[8]The respondent runs a care home (the home) known as Freelands Croft Care Home. The residents are older people who require nursing and dementia care. The claimant was employed by the respondent as a Care Assistant from 8 April 2019 until his dismissal in December 2023.[9]Sarika Kunwar became the manager of the Home from December 2021. Anabelle Abad was employed as Care Manager at the Home and had been shadowed by the claimant during his induction training. At the time of the matters in this case, Laxmi Bankar was employed as Clinical Deputy Manager at the Home. Grace Maswaya was employed as Regional Support Manager. Her role involves supporting home managers such as Sarika Kunwar. One of the homes for which she provided support was the home where the claimant was employed.[10]The claimant says that from the first day of her employment Sarika Kunwar bullied him. He gave no evidence of a specific incident or event, but he was questioned by the respondent about an incident involving Sarika Kunwar on her first day when she spoke to the claimant about charging his phone, using electrical equipment that had not been PAT tested. There was no bullying of the claimant during this incidnet. The claimant was spoken to quite reasonably by his manager about a potential issue of safety.[11]The claimant also complains of an occasion when he was assaulted in 2022. The claimant’s failure to provide a witness statement means that there is little information provided about this incident. When asked about an incident where the claimant was attacked, Sarika Kunwar said she knew nothing about such an incident. That is the only evidence given on that issue.[12]In about May/June 2022, the claimant was required to work in a way that enabled him to be supervised. This came about because the claimant was alleged to have falsified documents (the claimant was completing record sheets before the matter being recorded had been carried out). This was a serious matter for the home and so the claimant was supervised in his work for a period of time.[13]In about March 2022, the claimant’s cousin (whom he also refers to as his sister) was interviewed for a job at the home. The claimant’s cousin was interviewed on the basis that she had experience of working as a carer. During the interview, which was conducted by Sarika Kunwar, the claimant’s cousin was asked questions about the home which she was unable to answer. The cousin gave a poor interview, and her application was not taken any further. It was not until after the interview had taken place that Sarika Kunwar became aware that the interviewee was the claimant’s cousin.[14]The claimant is a member of the Seventh Day Adventist Church. He observes the sabbath. Friday is a non-working day for the claimant; this is to enable the claimant to observe the sabbath. The respondent’s rota system shows a working week as Friday to Thursday for all staff. Annual leave is always shown as starting on a Friday even if the member of staff does not work on Friday. Where staff have accrued a lot of leave that they need to use, holiday may be automatically allocated. This can be changed. The purpose of this is to avoid staff going long periods without a break. This occurred for the claimant in July 2023. When this occurs, an email is automatically generated stating that annual leave has been approved, notwithstanding that there has been no request or approval for annual leave. On 16 March 2022, the claimant’s sister died. On 18 March 2022, the claimant’s mother died.[17]The claimant requested an extended annual leave, and it was agreed that the claimant could take five weeks leave. The burial of the claimant’s mother and sister was however delayed until the following year, 2023. The claimant cancelled his leave request and did not take the authorised five weeks leave.[18]The respondent has a detailed guide and policy relating to annual leave. The annual leave guide makes clear that: “No more than two weeks of annual leave may be taken at once. Permission may be granted by your manager if operational circumstances allow.”[19]Employees are also told in the guide that there are circumstances when leave may be refused, for example, insufficient annual leave remaining. Employees are told that annual leave needs to be approved by the manager before the employee can take the leave. The consequences of failing to comply with this are clearly explained. “If you take annual leave that has been requested but not approved it will be classed as an unauthorised absence and action may be taken in line with our disciplinary policy.”[20]The claimant wrote to the regional director requesting eight weeks annual leave from 28 July 2023 to 23 September 2023. The claimant was informed that he could not have eight weeks annual leave, but four weeks was authorised. It was explained to the claimant that the home could not accommodate eight weeks leave. It was also explained that the claimant could give notice and transfer to a casual contract. This would enable the respondent to make long-term staffing arrangements and free the claimant to take the extended time that he needed.[21]On the occasion that Sarika Kunwar informed the claimant of her decision, they had a heated telephone conversation which ended with Sarika Kunwar hanging up without saying goodbye. The claimant subsequently sent Sarika Kunwar his flight details saying that he would be in Nigeria between 29 September 2023 to 26 October 2023.[22]While the claimant was in Nigeria there were complications which meant that the burial of the claimant’s mother and sister did not take place until 16 November 2023. While in Nigeria the claimant did not contact Sarika Kunwar, but he did contact the Care Manager, Anabelle Abad. Although she was the care manager, she was not the claimant’s line manager. The claimant’s line manager was Sarika Kunwar.[23]There is a conflict between the claimant and the respondent as to whether the claimant specifically asked Anabelle Abad to pass on the WhatsApp messages he shared with her on to Sarika Kunwar.[24]We have been provided with all the WhatsApp messages that are available and exchanged between the claimant and Anabelle Abad. There is no message where the claimant asks Anabelle Abad to pass his message on to Sarika Kunwar. On balance, we consider it more likely than not that the claimant did not specifically ask Anabelle Abad to pass the message on to Sarika Kunwar. We note that in her WhatsApp message sent on 1 December 2023, the claimant asked Anabelle Abad whether she had passed on the message to the manager. While this shows that the claimant thought he had asked that the message be passed on to the manager, we are satisfied that Anabelle Abad would have passed the message to the manager if the claimant had asked her to. We come to this conclusion because the “message of the pastor” ie, the relevant message explaining his reasons for not being able to complete the burial of his relatives within the four weeks authorised leave, was long but not a very clear message which Anabelle Abad did not read carefully. Anabelle Abad thought that the message of 11 October 2023 was simply the claimant passing on to her a religious message which he had done previously, or, perhaps, telling her what was going on during his leave. We note that, had Anabelle Abad read the message carefully, there is nothing in the message that would have necessarily alerted her to the need to convey the content to the manager. However, when the claimant did send Anabelle Abad a WhatsApp message that contained the detailed changes of his travel arrangements, Anabelle Abad independently formed the view that this was information that should be passed on to Sarika Kunwar, and she did just that.[25]In the WhatsApp message of 22 October, there is again nothing indicating that the claimant was giving this information with the purpose of it being passed on to Sarika Kunwar. Anabelle Abad passed on the information because it was, to her, clearly information that should be known by Sarika Kunwar.[26]Laxmi Bankar was asked to carry out an investigation into the claimant’s absence without leave for the period after 26 October 2023 when the claimant’s authorised leave ended. Laxmi Bankar wrote to the claimant on 8 November 2023: “To warning him that he was currently absent without authorisation.” The claimant did not receive this letter until he returned to England on 29 November 2023.[27]Laxmi Bankar then wrote to the claimant on 22 November 2023 inviting him to a disciplinary hearing on 28 November 2023. When the claimant was invited to the disciplinary hearing the respondent knew that the claimant was not going to return to England until 29 November 2023. This was known by Anabelle Abad and Sarika Kunwar. Sarika Kunwar had been the person who had asked Laxmi Bankar to investigate the claimant’s absence without leave in early November 2023 (at latest by 8 November).[28]By the time she asked Laxmi Bankar to carry out the investigation, Sarika Kunwar knew when the claimant was returning. This information should have been passed on to Laxmi Bankar. Had Laxmi Bankar been aware of the date of the claimant’s return, she stated she would not have set the disciplinary hearing for 28 November 2023 and would have invited the claimant to attend on a date after his return.[29]Laxmi Bankar did not hear from the claimant because he was unaware of the disciplinary hearing until after his return to England on 29 November 2023.[30]Laxmi Bankar sent the claimant a letter explaining that she had decided to dismiss the claimant without notice. Laxmi Bankar found that the claimant was absent without permission for a significant period of time and had failed to follow the absence reporting procedures.[31]The claimant appealed the decision to dismiss him, and the appeal was heard by Grace Maswaya.[32]The meeting was a difficult meeting because Grace Maswaya found the claimant aggressive and rude. Grace Maswaya made some erroneous conclusions in her appeal decision. She found that the claimant could email while he was in Nigeria. This was wrong. The claimant could send a WhatsApp but not send or receive emails. There was no email from the claimant while he was in Nigeria. Whilst Grace Maswaya recognised that the claimant failed to contact his line manager and did not specifically ask Anabelle Abad to contact his line manager for him, she did not appear to acknowledge that he had informed Sarika Kunwar of the revised date of return indirectly via Anabelle Abad. Grace Maswaya also appears not to have known, or, if she knew, failed to take into account that the claimant had originally booked his flights to comply with the leave that was granted and the reason for his extended stay was explained in the WhatsApp message of 11 October 2023 which she, understandably, considered to be “unclear” and “sent without context”.[33]Grace Maswaya did not speak to Anabelle Abad or Sarika Kunwar as part of her appeal investigation. Grace Maswaya did not speak to Laxmi Bankar to establish the timeline in respect of the respondent’s knowledge of the details of the reasons for his extended stay and notification of his return date. Grace Maswaya upheld the decision to dismiss the claimant.[34]Two copies of the appeal outcome letter ended up being sent to the claimant. The reason for sending the two letters was because the claimant had not received the first letter. The second letter had some changes made to the letter before it was sent. The changes do not affect the message or overall content of the letter. The issues to be decided Unfair dismissal[35]Was the reason or principal reason for dismissal conduct of the claimant? If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant?[36]Section 98 of the Employment Rights Act 1996 ("ERA") provides that in determining whether the dismissal of an employee was fair or unfair, it shall be for the employer to show-(a) the reason (or, if there was more than one, the principal reason) for the dismissal, and(b) that it is … a reason falling within subsection (2) … The conduct of an employee is a reason falling within the subsection. Where an employer has shown a potentially fair reason the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[37]The Respondent must show that: (a) it believed the claimant was guilty of misconduct;(b) it had reasonable grounds upon which to sustain the belief;(c) at the stage which it formed that belief on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances of the case.[38]It is not necessary that the tribunal itself would have shared the same view of those circumstances.[39]After considering the investigatory and disciplinary process, the tribunal has to consider the reasonableness of the employer's decision to dismiss and (not substituting our own decision as to what was the right course to adopt for that of the employer) must decide whether the Claimant's dismissal "fell within a band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair". The burden is neutral at this stage: the Tribunal has to make its decision based upon the evidence of the claimant and respondent with neither having the burden of proving reasonableness. Wrongful dismissal[40]What was the claimant’s notice period? Was the claimant paid for that notice period? If not, was the claimant guilty of gross misconduct?[41]A wrongful dismissal is a dismissal in breach of the relevant provision in the contract of employment relating to the expiration of the term for which the employee is engaged. To entitle the employee to sue for damages, two conditions must normally be fulfilled namely: the employee must have been engaged for a fixed period, or for a period terminable by notice, and dismissed either before the expiration of that fixed period or without the requisite notice, as the case may be; and his dismissal must have been without sufficient cause to permit his employer to dismiss him summarily. The common law claim for wrongful dismissal is to be considered separately from the statutory claim for unfair dismissal. Direct race discrimination (Equality Act 2010 section 13)[42]The claimant is Black Nigerian and he compares his treatment to the other Care Assistants who were mostly Asian. Did the respondent (Sarika Kunwar) do the following things:(a) bully the claimant by shouting at him repeatedly (starting on her first day as his manager and continuing);(b) fail to investigate when he was physically attacked (2022);(c) redeploy him (September 2022);(d) give his cousin an unreasonably harsh job interview (March 2023);(e) assign him (unrequested) holiday leave on Fridays, which were not his working days for religious reasons (July 2023);(f) orchestrate that two appeal outcome letters were sent (January 2024). If so, was that less favourable treatment. The claimant says they were treated worse than all the other Care Assistants. If so, was it because of race? Direct religion/belief discrimination (Equality Act 2010 section13)[43]The claimant is a Sabbatarian. Did the respondent (Sarika Kunwar) do the following things:(a) bully the claimant by shouting at him repeatedly (starting on her first day as his manager and continuing);(b) fail to investigate when he was physically attacked (2022);(c) redeploy him (September 2022);(d) give his cousin an unreasonably harsh job interview (March 2023);(e) assign him (unrequested) holiday leave on Fridays, which were not his working days for religious reasons (July 2023);(f) orchestrate that two appeal outcome letters were sent (January 2024). If so, was that less favourable treatment? If so, was it because of religion/belief? Harassment related to race or religion/belief (Equality Act 2010 section 26)[44]Did the respondent do the following things:(a) bully the claimant by shouting at him repeatedly (starting on her first day as his manager and continuing);(b) fail to investigate when he was physically attacked (2022);(c) redeploy him (September 2022);(d) give his cousin an unreasonably harsh job interview (March 2023); (d) assign him (unrequested) holiday leave on Fridays, which were not his working days for religious reasons (July 2023);(e) orchestrate that two appeal outcome letters were sent (January 2024). If so, was that unwanted conduct? Did it relate to race or religion/belief? Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Victimisation (Equality Act 2010 section 27)[45]Did the claimant do a protected act as follows: In a phone call with Sarika allege bullying in July 2023? The respondent dismissed the claimant? By doing so, did it subject the claimant to detriment? If so, was it because the claimant did a protected act? Was it because the respondent believed the claimant had done, or might do, a protected act?Conclusions
[46]The issues to be decided were set out in the record of a preliminary hearing sent on 23 September 2025. Unfair dismissal[47]What was the reason, or principal reason, for dismissal? The respondent says the reason was conduct. The tribunal will need to decide whether the respondent genuinely believed that the claimant had committed misconduct.[48]We conclude that the reason the claimant was dismissed was because he was absent without permission and failed to follow the respondent’s policy.[49]No evidence that might show that the claimant could have been dismissed for a discriminatory reason to do with his race or religion, or because he complained of being bullied, has been presented.[50]The way that the respondent dealt with the disciplinary process was, in the unanimous view of the Tribunal, unfair. The respondent knew that the claimant was due back on 29 November but arranged the disciplinary hearing on 28 November. A reasonable and fair investigation would have exposed that fact. It was after all known by the home manager who initiated the disciplinary process at the time. At the time she initiated the disciplinary process she knew that the claimant was due to return on 29 November.[51]While the claimant failed to comply with the respondent’s procedures, he did not contact his line manager, he did however contact the care manager and gave her the information that would have been reasonably expected, ie, an explanation for his extended stay and the revised date of his return. That this information was known by the respondent but not placed before the decision maker, in our view, makes the dismissal unfair.[52]That the decision was taken at a disciplinary hearing on 28 November when the respondent knew that the claimant was due to return on 29 November, in our view, also makes this process unfair notwithstanding that it would appear the decision maker was unaware that the claimant was returning on 29 November. The claimant’s line manager and his immediate manager, the care manager, were both aware that the claimant was not due to return until 29 November. This information should have been made known to the decision maker. The fact that it was not renders the entire process, in our view, unfair.[53]There was not a reasonable investigation at the point that the claimant was dismissed.[54]The appeal did not cure the defects of the initial decision. The appeal ignored the fact that the claimant’s action while not complying with the letter of the procedures, did in fact provide the information that might be expected of the claimant had he complied with the procedures. The appeal did not cure the difficulties evident in the initial decision.[55]The claimant was unfairly dismissed but, in our view, the claimant, by his conduct, contributed to his dismissal. The claimant’s blameworthy conduct, in our view, is his poor communication of his difficulties and his failure to comply with the procedure by sending a message to his line manager.[56]While the claimant clearly had difficulties in receiving emails and sending emails and was not available by post whilst he was in Nigeria, he did have access to WhatsApp. He was able to contact Anabelle Abad and he would have been able to contact his line manager by the use of WhatsApp as he was a member of WhatsApp groups which would have given him the details of his line manager so as to communicate with her using that means.[57]In the circumstances, we consider that it is just and equitable to attribute the blameworthiness of this dismissal at 50/50. Wrongful dismissal[58]The reason for the claimant’s dismissal was his failure to comply with the respondent’s procedure and being absent without permission. The respondent says that the claimant was guilty of gross misconduct. The tribunal note that an example of gross misconduct is deliberately ignoring or failing to comply with company policies, standards, and/or procedures to the detriment of residents, colleagues, customers, or the respondent’s reputation.[59]For a breach of failing to comply with regulations to be gross misconduct, it has to be not only a breach of policy but also it must be to the detriment of residents, colleagues etc. Laxmi Bankar only considered the breach of policy but gave no consideration to whether it was to the detriment. No direct evidence of detriment beyond being away was established, ie, no evidence of difficulty arranging cover or causing extra work to be caried out by colleagues to their detriment.[60]The respondent has not shown that the claimant’s conduct was in fact, gross misconduct. In the circumstances the claimant was therefore wrongfully dismissed. Discrimination claims[61]The claimant has not produced any evidence at all that points to his race or religion being a factor in any of the matters about which he is complaining about beyond his mere assertion in making the claim.[62]The claimant has not shown evidence for us to conclude that the claimant was bullied by Sarika Kunwar. There is no evidence at all that Sarika Kunwar was aware that the claimant was the victim of an attack so as to require her to investigate. In any event, no evidence to suggest race or religion played any part.[63]The claimant was not redeployed in September 2022. The claimant was however subject to supervision for a period arising from concern about the claimant falsifying documents. The claimant’s race or religion was not a factor.[64]The claimant’s cousin was subjected to an ordinary interview in which she did not perform well. At the time that the interview took place it was not known that the claimant was her cousin. The claimant’s protected characteristics of race and religion played no part.[65]The claimant was assigned leave on a Friday on two occasions. This was done automatically because the claimant had accrued a lot of leave which needed to be allocated. The claimant’s race or religion played no part and the claimant in any event could not reasonably consider that he was subjected to a detriment in relation to this.[66]The claimant has not shown that Sarika Kunwar orchestrated two appeal outcome letters to be sent in January 2024. Sarika Kunwar was nothing to do with the appeal. The two appeal letters were sent as a result of the disorganised way in which the appeal was handled. There was nothing to do with the claimant’s race or religion in that.[67]The claimant has not shown any evidence to suggest that he was harassed because of his race or religion.[68]The claimant was dismissed because he was absent without permission and failed to follow the respondent’s procedure. His dismissal was not because he did any protected act in accusing Sarika Kunwar of bullying him.[69]The conclusion of the Tribunal is that the claimant was wrongfully dismissed. The claimant was unfairly dismissed and contributed to his dismissal. The claimant’s compensatory award should be reduced by 50 percent. The claimant’s complaints about direct discrimination on the grounds of race and religion, harassment related to race or religion, and victimisation are not well founded and are dismissed. Approved by: Employment Judge Gumbiti-Zimuto 6 October 2025Conclusions
Conclusions
[1]The Tribunal sent the reasons for the judgment to the parties on 8 October 2025, on 20 and 21 October 2025 the claimant made applications for reconsideration of the judgment. The application was refused because there is no reasonable prospect of the original decision being varied or revoked, the claimant was seeking to reargue the case and relied on evidence that should have been provided at the hearing.[2]The claimant has attended today to support his claim for a remedy but has once more failed to provide a witness statement, perhaps the claimant can be forgiven for that because he was not directed to provide a witness statement in relation to remedy but you would have thought that he would have provided one because he provided a schedule of loss though no schedule of loss was ordered for this hearing.[3]The schedule of loss indicated that the claimant produced indicated gave his annual salary was £16252.24, in it he wanted to claim for the loss of his accommodation which he valued at £250,000. He also wanted to claim for PTSD and mental health illness at the sum of £450 per month to cover medication from Africa for mental health illness and “expected death on 30 March 2025”, presumably relating to him being on the street, for which he claimed £350,000, a total figure £616,252.24 was sought by the claimant. The claimant also provided with that schedule a series of photographs which appear to show the inside of a property which we understand to be the claimant’s former home, from which he was evicted, showing the items of property he has lost since losing his home. Case Number: 3303649/2024 Page 2 of 6[4]The claim for unfair dismissal is the only claim that succeeded, the claims for discrimination did not succeed. The effect of that is that the claimant is entitled to the recover for the pecuniary losses which arise from the decision to dismiss. The claimant has not shown any link between the various matters about which he seeks to claim which are described by the respondent as non monetary losses because there is not a nexus between the claims and the dismissal permitting the claimant to claim they are a loss arising from the unfair dismissal, but also more fundamentally the law does not permit the recovery of those items because they are not pecuniary losses they are not the type of losses that can be recovered in a unfair dismissal claim.[5]The financial losses that the claimant can recover for unfair dismissal claim, in this case, are limited to the loss of earnings.[6]The claimant was also successful in his claim for wrongful dismissal and the remedy for a wrongful dismissal claim is damages in the form of notice pay. The effect of that is that the claimant is entitled to recover £1654 in respect of his claim for wrongful dismissal and the Tribunal makes that award to the claimant.[7]The Tribunal has to determine what losses the claimant sustained in respect of the unfair dismissal. The claimant’s compensatory remedy claim for unfair dismissal in our view can only be limited to loss of earnings in this case as there are no other pecuniary losses claimant. The issue for our determination is the extent to which the claimant should be entitled to recover in respect of loss of earnings.[8]The claimant’s loss of earnings should be measured from the day after the claimant’s notice period would have ended. The claim for loss of earnings is subject to the statutory cap which in the claimant’s case is one year’s salary at £19,818.24, calculated on the basis of 52 x net weekly pay of £381.12.[9]What period of time, subject to the cap, should be compensated in this case? The respondent says that the claimant has failed to prove his losses and to the extent that he has proved his losses they should be severely curtailed.[10]The Tribunal considers that the claimant has not failed to mitigate his loss. We recognise that a person might have been able to secure employment in the care industry within the four month period that the respondent asserts should have been the case for the claimant. However, the claimant did not get employment in that time indeed he remains unemployed.[11]The claimant has said that he is not able to secure employment because he is “mad” those are the claimant’s own words not a label placed on him Case Number: 3303649/2024 Page 3 of 6 by the Tribunal or anyone else, and that he has PTSD, which is caused by the “double barrel of dismissal and eviction”.[12]The respondent refers to the claimant’s medical records which show that the claimant was not treated for mental health issues before 12 March 2025. This coincides with the date when the claimant was evicted from his home on 4 March 2025.[13]In the period before March 2025 the respondent states that the claimant has not shown that he was not fit to work and therefore should be considered as having failed to show that he has mitigated his losses, has not proved his losses and therefore should not be compensated for the whole period.[14]The fact that the claimant has not produced evidence that he was unfit to work for a specific reason in his medical records does not prove that he was fit to work in that period of time, while it may permit a conclusion that he was fit to work, where he states that he was not fit to work it is not necessarily a determinant that he was fit to work although we must have regard to the fact that there was no medical evidence in answering that question.[15]The claimant states that he was not fit to work because of mental health issues, if that is correct then he has not failed to mitigate his losses. Further, if he was unfit to work due to mental health issues and other issues, it is unlikely that the claimant would have been able to secure employment in the 4 months that the respondent asserts that the claimant should have been able to find employment.[16]The approach we have taken is to ask ourselves whether we believe the claimant when he says he was unfit to work due to mental health issues, and then gone on to consider the evidence which we do have before us and ask whether that permits us to conclude that it is more likely than not that the claimant was unfit to work and therefore has not failed to mitigate.[17]At the point of the claimant’s dismissal the claimant returned from Nigeria where he had been for the burial of his mother and his sister. While their deaths were a year previously their burial was long delayed.[18]The claimant produces no evidence of his specific mental health issues in that period beyond his assertion that he was suffering from PTSD due to the double barrel of dismissal and eviction. At the point of his return from Nigeria and his dismissal, the claimant had received notice to quit his property and that eventually led to court action in 2024 and his eviction in 2025. We recognise that this would have had a destabilising effect on anyone, to lose your job and then be threatened with losing your home at a time when he is still dealing with the death of two family members is something that may have caused the claimant to be in a position where his Case Number: 3303649/2024 Page 4 of 6 mental health would have been affected. We accept the claimant’s evidence when he says he was suffering from mental health issues.[19]We have also taken into account the way that the claimant has presented himself in this case which is in a manner that is troubling and from a lay perspective appears to support the medical evidence that the claimant produces about his mental health, in reaching this conclusion we are not making any determination about his medical condition. The medical evidence states that the claimant currently suffers from depression and has been recorded as having done so since 12 March 2025. Today the claimant says he also suffers from PTSD although that is not recorded in the medical records at all.[20]The claimant has not presented to us in a manner that suggests that he is likely to have been able to secure employment as a carer at the present time. The claimant is not likely to have been able to receive a good reference from the respondent after his dismissal. The evidence in the case showed that there were a variety of concerns about the claimant’s performance which had not translated into any formal action but appeared to be causes for concern.[21]Taking all these factors into account we consider that it would not be just and equitable to conclude that the claimant should have the period of his remedy curtailed because it is in our view be ignoring the reality of the position of the claimant as he presents today and at the hearing the claimant that he is not likely to have been able to get employment as a carer. We consider that it is likely that the claimant would have been presenting in a similar fashion in the period after his dismissal and so in our view it is not realistic to say that he would have got employment sooner.[22]We asked ourselves whether notwithstanding that the claimant would not be able to secure employment in the care field we should find that the claimant could find employment in some other area in the period and our conclusion is that the claimant would have faced a similar challenge if he sought employment in another field.[23]After giving oral judgment we were asked by the respondent, “whether we made finding of fact that the claimant would have been fit to work if not dismissed”? We did not. The way we approached this case is to consider what he was faced with after dismissal, and how he reacted to it, the question we asked ourselves is whether in all the circumstances the claimant should have secured employment.[24]We do not think it is appropriate to make any reduction to the period of employment when we make calculations. Notice pay for wrongful dismissal Case Number: 3303649/2024 Page 5 of 6[25]The claimant’s notice entitlement was one month and one month’s pay was £1651.64 Basic award[26]The claimant was entitled to a basic award of £2624.46 (6 weeks’ pay at £437.41). Compensatory award[27]For loss of statutory rights, we make an award of £450. Loss of earnings[28]709 days or 101 weeks from the date of the claimant’s dismissal to the date of Tribunal hearing, which amounts to £38,493.12 (101 weeks X £381.12) Statutory cap[29]The statutory cap in this case is £19818.24 (£381.12 X 52). After applying the reduction of 50% for contributory fault the compensatory award is £9,909.12.[30]The award for unfair dismissal is therefore £12,533.58.[31]The total award is therefore £14,185.22. Approved by: Employment Judge Gumbiti-Zimuto 5 December 2025[1]The claimant was entitled to a basic award of £2624.46 (6 weeks’ pay at £437.41). Compensatory award[2]For loss of statutory rights, we make an award of £450. Loss of earnings[3]709 days or 101 weeks from the date of the claimant’s dismissal to the date of Tribunal hearing, which amounts to £38,493.12 (101 weeks X £381.12) Statutory cap Case No: 3303649/2024[4]The statutory cap in this case is £19818.24 (£381.12 X 52). After applying the reduction of 50% for contributory fault the compensatory award is £9,909.12.[5]The award for unfair dismissal is therefore £12,533.58.[6]The total award is therefore £14,185.22. At step 4 above the sum of £450 should have been added to the figure for loss of earnings resulting in £38,943.12 (not £38,493.12). The final amount however remains the same after the application of the statutory cap. Approved by: