Mrs S Sarabandi v API Engineering (O & G) Ltd and Mr M Robinson: 3325777/2019
JUDGMENT
[1]The Claimant was unfairly dismissed. She contributed to her dismissal within the meaning of s.123(6) Employment Rights Act 1996 and the Compensatory Award has been reduced by 50% to reflect this. A similar reduction (50%) was made to the Basic Award under s.122 Employment Rights Act 1996.[2]The Respondent shall pay to the Claimant compensation for unfair dismissal in the sum of £15,431.94 made up as follows:a. A basic award of £525.00; andb. A compensatory award of £14,906.94.[3]The recoupment provisions apply to the compensatory award (as described in the attached Annex) as follows:a. The monetary award is £18,275.85;b. The Prescribed Element is £14,906.94;c. The period to which the Prescribed Element relates is 30 September 2019 to 30 September 2020; and Case Number: 3325777/2019 (V) 2d. The monetary award exceeds the Prescribed Element by £3,368.91.[4]The Claimant’s claim for unlawful deduction from wages for the period 27 to 30 September 2019 succeeds and the Respondent shall pay to the Claimant £536.12 gross (£461.55 net) in respect of this claim.[5]The Respondent dismissed the Claimant without notice in breach of contract and shall pay the Claimant damages of £2,307.79 net in respect of this claim.[6]The Claimant’s claim for holiday pay fails and is dismissed.[7]The Claimant’s claim for commission fails and is dismissed.[8]The upheld claims are upheld against the First Respondent (the company) only. 5 May 2021REASONS
There is no reasonable prospect of the original decision being varied or revoked. Taking each point raised by the Respondents in turn, using the same paragraph numbering as the Respondents’ application:[1]The Respondents’ assertion that five months was ample time for the Claimant to find employment is without foundation or evidence. The Tribunal heard evidence and the Claimant was cross examined on her attempts to find alternative work. The Respondents did not provide any evidence of the availability of roles suitable for the Claimant in the area and therefore did not demonstrate that she had unreasonably failed to mitigate her losses.[2]The Respondents cross examined the Claimant on the work she had sought post dismissal. The Tribunal made findings that such work was not limited to the oil and gas sector and that she had considered a variety of roles (see paragraph 49 of the Reasons). The Respondents assert that she failed to mitigate but this has already been argued and determined and the Respondents have not presented any new evidence or new arguments to suggest that the decision was incorrect. Whilst the Second Respondent may have verbally announced that he had identified 40,000 roles available to the Claimant during the hearing, there was no evidence to substantiate this. Case No: 3325777/2019 11.6R Judgment – Reconsideration refused – respondent - rule 72 Further, there was no evidence to show that any such search was focused on appropriate roles in the appropriate location. It was mere assertion and the burden of proof rests on a Respondent to demonstrate a failure to mitigate.[3]The Claimant’s statement of loss could tend to suggest that she had only applied for 12 roles in the 9-months post dismissal. However, the Claimant’s oral evidence when cross examined on this was that she had been interviewed for 12 roles but had applied for many more (see paragraph 49 of the Reasons). Whilst her assertion as to the precise number of roles was not accepted, the Tribunal found that she had reasonably mitigated and accepted her evidence that the 12 roles listed were those she had been interviewed for, not merely applied for (see paragraphs 49-51 of the Reasons).[4]The Tribunal found that the Claimant focused her job search on a reasonable geographical location and, as stated above, that such search was not limited to roles in oil and gas. The assertion that she should have searched for roles across the whole UK is not accepted. This would require her to uproot her life and is not a reasonable expectation.[5]The Claimant gave evidence on oath that she had not obtained employment or other work by the date of the hearing. This evidence was accepted. Whilst she may have told Mr Baggott in September 2019 that she already secured a new role commencing January 2020 (about which the Tribunal makes no finding) by the date of the hearing in April 2021, she was able to testify as to what actually happened after termination, not what she said at some prior time. Further, she did give evidence that whilst she had almost secured some opportunities, they were cancelled as a result of the pandemic, which might explain any comment allegedly made.