Mr M S Bhogal v HM Revenue and Customs: 6008646/2025
REASONS
[1]This judgment and reasons should be read with the written Judgment and Reasons signed on 31/10/2025 sent to the parties on 5/11/25.[2]On 19/11/25 the Respondent applied for reconsideration of the re-instatement Order (part of the previous Judgment). I directed that it would be heard today (15/1/26), which I had already arranged because the Claimant had applied for a further remedy judgment following the Respondent’s non-compliance. I have today received evidence from the Respondent’s further witness Ms S Richardson, read a Respondent’s skeleton argument for today, been referred to a remedy bundle of 364 pages and have listened to oral submissions from both sides.[3]At the hearing on 31/10/25, and as I noted in paragraph 70 of the previous Reasons, the Respondent chose not to call any evidence regarding the question whether reinstatement should be ordered. As this assertion has been challenged in the reconsideration application, by reference to paragraphs 27 and 28 of Ms P Du Plessis witness statement, I take the opportunity to clarify that we dealt with liability and remedy separately and sequentially, by way of evidence, and that when the liability stage of the hearing was completed and we were dealing with remedy, Mr Gittins declined my invitation to recall Ms Du Plessis or any other witness to give evidence or to be cross-examined on the subject. Nor did he cross-examine the Claimant or challenge the evidence which the Claimant gave at that stage (which was that he thought that protagonists involved in his dismissal would have “moved on” or would not pose any difficulties for him on reinstatement, and that he felt confident that he could take up his old job again successfully).[4]As stated in paragraphs 68, 73 and 74 of the previous Reasons, the Claimant wished to be re-instated, I found it was reasonable for him to be so, despite his admitted contributory fault, and on the evidence before me, it was practicable. Mr Gittins said little or nothing about all this by way of resisting the making of the Order at the time.[5]Since the promulgation of my previous Judgment and Reasons the Respondent has produced lengthy new arguments and submissions opposing the making of the Order, which were not referred to before.[6]The relevant law relied on by the Respondent is summarised in the reconsideration application and set out at length in paragraphs 8-17 of its skeleton argument for today, all of which I have considered and which I incorporate by reference into these reasons, but which for the sake of brevity I do not repeat here. Mr Gittins emphasised as “key points” in his oral submissions that the Tribunal should decide the practicability issue on the basis of the particular employer and particular employee, with the employer’s views as most significant especially regarding the claim that trust and confidence had been lost. The Respondent had the burden of showing a lack of practicability but the level required was not a high one.[7]The main assertion which underpins the Respondent's submissions that it is impracticable to re-instate, is that the Respondent has lost trust and confidence in the Claimant because(i) it believes he acted dishonestly and(ii) he has confessed to being careless, cavalier etc. (paragraph 67 of the previous Reasons) and that I assessed his contributory fault as 30%. Hence, as stated in its skeleton argument, “if employees cannot be accurate with the fundamentals of their own financial affairs, how can they provide the level of service and integrity customers rightly expect?”[8]In so far as (i) is concerned, I find that it does not have a rational basis. My reasons for this are the same as those I gave in my judgment on liability. A reasonable employer would not have reached that conclusion and should not now continue to entertain it.[9]Insofar as (ii) is concerned, I have already dealt with this in in the previous Reasons: (paragraph 73). I found that “he has learnt his lesson and I think it is potentially in the interests of both parties if the Claimant is given a fresh start so hopefully he can try to progress his career within the Civil Service where he had been working satisfactorily for about 7 or 8 years before the unfortunate events which caused his unjustified dismissal”.[10]I dismiss the submission that because the Claimant admittedly was careless, (in a situation where he was entitled to assume that the Respondent’s managers and pay department would be careful and do their job properly by way of notifying him in writing of any pay changes (which they did not)), this makes it impracticable to re-instate him.[11]Employees are not required to be perfect and nor does the public expect them to be.[12]It is not suggested or shown that the Claimant has ever been careless or mistaken in dealing with tax matters as part of his job and Ms Richardson said that as far as she was aware he had not been.[13]When I asked Ms Richardson whether she thought that Ms Clarke and Ms Penfold (see paragraphs 26 to 31 of the previous Reasons) had been careless, she gave an evasive answer saying “she thought it was unfortunate”. Thus, the Respondent continues to discount its own fault, which on any reasonable view would be categorised as carelessness by more senior managers, and which I assessed as contributing 70% to the unfair dismissal, while relying on the Claimant’s significantly lower level of contributory fault (which did not affect the main functions of his work) as a retrospective excuse for not having him back.[14]I recognise that 30% contributory fault is significant but the type of fault is also a relevant consideration. The fault did not consist in either dishonesty or incompetence in doing the main functions of his job. As I stated in paragraph 67 of the previous Reasons: “The Claimant’s contributory fault consists in his self-confessed carelessness or a cavalier attitude to such matters as not taking an interest in how the Respondent arranges its salaries, not reading the second page of standard form government employment contracts, and not reading policy documents which may discuss pay scales and intranet announcements about pay increases, London and National pay and suchlike. These are matters which many people, even if they are competent in their work, may be ignorant of or not interested in.”[15]I do not find that the so-called loss of trust and confidence is genuine or justified.[16]I refer to various other ancillary submissions (set out in italics) as follows: “reinstatement of the Claimant back into the team at the HO level would deny a promotional opportunity to other experienced and talented Band O colleagues”.[17]Had the Claimant not been unfairly dismissed he would still be occupying a position into which others might otherwise have been promoted. Obviously, in a large organisation the Claimant’s re-instatement would not permanently prevent others being promoted. “The Claimant’s absence for over 12 months would require him to be treated as a new starter requiring his out of date skills and knowledge to be rebuilt by returning to Central Training Unit (“CTU”) to re-do the 18-month induction programme. …The Respondent would also need to identify a mentor for a further period of at least 6 months meaning it would take 2 years to get the Claimant up to speed for the role.”[18]When Ms Richardson was questioned by the Claimant about how, if at all, his work and his knowledge required to do his work, may have changed during his 12 months absence, she referred vaguely to changes but was unable to give any specific examples.[19]Ms Richardson stated in her witness statement that she “only met with the Claimant on one occasion that I can recall when I joined the Large Business Team, in July 2024”. She seemed to have little first-hand knowledge of the Claimant or his abilities.[20]When I questioned her about the claimed need for a new starter induction, mentor etc, Ms Richardson confirmed that none of this was written in any policy document. She had thought it up herself. She was unable to identify any other specific employee who, following an absence of 12 months (for example on maternity leave or sick leave, suspension or sabbatical) had been required to be treated as a new starter, subjected to an 18-month induction programme and required to be mentored.[21]The Claimant is an intelligent and experienced ex-employee who I find would have taken a much shorter time to find his feet again than these gloomy and unprecedented predictions would suggest. The suggestions that he would have been required to be treated as a new starter etc are artificial and unjustified by the reasonable needs of the Respondent outside this litigation. “The line manager of the Claimant at time of dismissal is still in the team, and the management team is still the same. Therefore, the Respondent could not give the Claimant the fresh start they may want. Further, the Claimant denied having conversations with two of his still previous managers about pay rates which could create future relationship difficulties”.[22]The Claimant appears to be an easy-going person who did not get involved in any strife or conflicts with colleagues at work. Many re-instatements following an unfair dismissal finding are likely to create a degree of awkwardness at first. However, the Respondent is a large organisation and not a small family business. The reality is that if the Claimant had been re-instated and the responsible managers and colleagues had taken an adult and cooperative view of the matter, it is likely that it would have been successful and that no further problems would have ensued.[23]Having considered all the matters raised by the Respondent, I confirm the re-instatement Order.[24]Hence the Claimant is entitled to an award under section 117(3)(a) ERA 1996.[25]Under section 117(4)(a).the Respondent has not satisfied me that it was not practicable to comply with the Order. Nevertheless, the Respondent has failed to comply with it. Hence the Claimant is also entitled to an award under section 117(3)(b).[26]The Claimant is working for the Highways Agency for a salary of £18000 a year. He told me today that following discussions with an unnamed colleague and after looking at a document on his computer (which he had not disclosed or put in the remedy bundle,) he thought it would take him as long as 5 years in the Highways Agency to get back to the same salary he had from the Respondent.[27]He has not produced any schedule of loss (contrary to a direction given on 14/4/25 that he should produce one by 26/5/25). He had not produced any witness statement or calculation of possible future losses for the remedy hearing, despite the fact that he knew from 1/12/25 at the latest that the Respondent was not going to re-instate him, and I directed that any new material to be relied on at the remedy hearing today should be served by 8/1/26.[28]The Claimant could probably obtain a better paid job rather than remaining for years on what must be the minimum wage or similar with the Highways Agency.[29]Any calculation of possible future losses caused by the dismissal would be entirely speculative.[30]The Claimant still owes the Respondent a refund for the overpayment of salary to him in the period to about August 24.[31]Accordingly, and in all the circumstances I regard it as just and equitable to award financial losses caused by the unfair dismissal up to 1/12/25 only (i.e. for about one year following dismissal but not beyond), less the overpayment amount.[32]I according make the following awards Under section 117(3)(a) ERA (ordinary UD award) Basic award1 £2800 Compensatory award Loss of statutory rights £350 1 4 years service, Claimant 32 yrs old, weeks wage £703.38 Salary loss2 December 24-December 25 £32426 Less overpayment (£5941) Subtotal £29635 Less 30% contrib fault £8890. Total £20744[33]The Recoupment provisions apply to the above award. The prescribed period is 13 December 24 to 14 January 26. The prescribed amount is £18539.01. The difference between the prescribed amount and the total award is £2205. The Claimants NI number is JW578409B. Under section 117(3)(b) ERA (additional award for not re-instating Claimant)[34]Mr Gittins submitted that the Claimant’s contributory fault should result in a lower award (26 weeks’ pay) and no higher. The provisions of section 122(2) and 123(6) (which provide for deductions from the basic and compensatory awards on account of contributory fault) or similar, are not repeated in section 117 (3)-(8) (which provide for the additional award).[35]The Claimant has already suffered a significant discount to both his basic and compensatory awards under section 117(3)(a) and any further deduction/reduction to his section 117(3)(b) award on account of his contributory fault would in my view be inappropriate, even if it is a permissible consideration.[36]I am not satisfied that the Respondent has any good or valid reason for not complying with the re-instatement Order.[37]The Order included the following: “By 1/12/25 The Respondent must re-instate the Claimant into his old role at the same work place on the same terms which he would enjoy on that date if he had not been dismissed. By 5pm on 15/11/25 the Respondent must notify the Claimant and the Tribunal in writing whether or not it intends to comply with the re-instatement order….”[38]The purpose of the direction that the Respondent should notify the Claimant by 15/11/25 was so that the Claimant would know whether or not he should give notice of resignation to The Highways Agency (his new employer), - and have time to do so, -which it would have been proper of him to do, if he needed to leave its employment to take up his reinstated position with the Respondent on 1/12/25. 2 But for his dismissal, he would have received from R £36576. Instead he received £4150 from the Highways Agency. The difference is £32426[39]Thus, the Respondent. following my judgment, which it knew about on 31/10/25, was given two weeks to make up its mind about whether or not to comply, but directed on expiry of that period, to let the Claimant know so he would know where he stood and what he should do about his own employment situation.[40]The Respondent ignored that direction and failed to communicate with the Claimant at all during November 2025 despite his writing to its solicitors on 15 and 17 November.[41]When I asked Ms Richardson about this today she said she knew nothing about it (despite the fact that she claimed that she had read the whole of my previous judgment and reasons, which included the direction set out above).[42]This failure compounded the previous unfair treatment of the Claimant by leaving him in limbo and uncertainty.[43]Furthermore, in an email which I sent to the parties on 18/11/25, when the Respondent had still not made its intentions known, and I had received a complaint from the Claimant about this, I included the following: “The Respondent should please note that it intends to not comply with the re-instatement order and thereby expose the taxpayer to the additional considerable costs of paying additional compensation to the Claimant, I would expect that evidence will be presented to me at the remedy hearing that the CEO of HMRC is aware of the situation and has approved any such decision.”[44]The reason for this direction was my concern that if the same managers or managers at similar levels to the persons who had unfairly dismissed the Claimant were to make the decision that the Respondent should not comply with the re-instatement Order, they should not do so without approval from the CEO.[45]Ms Richardson told me today that this direction had also been not complied with, and that the CEO was unaware of the whole matter.[46]The Respondent has acted unreasonably in these respects and also been in breach of directions.[47]In all the circumstances an award of 52 weeks’ pay (£36576) is appropriate. J S Burns 6008646/2025 EMPLOYMENT TRIBUNALS Claimant: MR M S BHOGAL Respondent HM REVENUE AND CUSTOMS NOTICE The Claimant’s application dated 28/1/2026 for reconsideration of the Supplementary Remedy Judgment sent to the parties on 16/1/2026 is refused because there is no reasonable prospect of the judgment being varied or revoked. J S Burns