MS A E DAVIDSON-HOGG v (1) DAVIS GREGORY SOLICITORS (2) MR T HOWARTH [2010] UKEAT 0512_09_1511
[1]APPEARANCES For the Appellant MR RICHARD POWELL (of Counsel) Instructed by: Messrs Irwin Mitchell LLP Solicitors Imperial House 31 Temple Street Birmingham B2 5DB For the Respondents MR BARRY HAVENHAND (of Counsel) Instructed by: Messrs Davis Gregory Solicitors 25 Rodney Road Cheltenham GL50 1HX SUMMARY UNFAIR DISMISSAL Compensation Polkey deduction The Claimant was unfairly dismissed on 8 November 2006. The Employment Tribunal found she would have been fairly dismissed or resigned on 16 January 2007 and awarded compensation for economic loss up to then but not thereafter. The EAT upheld this award for even if the manner of the dismissal made the Claimant ill and made it more difficult to seek work, the hypothesis of the limitation of loss, under Polkey , is that but for the dismissal with its attendant unfairness, the employment would have ended anyway.[2]The case was remitted to the same Employment Tribunal to determine whether loss after 16 January occurred, on the footing that by then the Claimant would have been admitted as a solicitor with access to higher paid work.[3]Having awarded compensation and aggravated damages for non-economic loss in respect of three wrongful acts, the Employment Tribunal was bound to earmark the amount awarded for each, as one carried with it an entitlement to seek interest. HIS HONOUR JUDGE McMULLEN QC Introduction "6. ... (i) In relation to the compensatory award, the period of loss. The respondent contends that the loss should be limited to a short period to reflect the fact that the claimant's employment would have been terminated in any event after a short period. The respondent relies on Polkey vAE Dayton Services Ltd (1987) ICR 142 , whereas the claimant contends that she should be awarded financial loss from the date of dismissal up to the date of hearing, and thereafter to reflect a period of future loss." "It is clear to us that the style in which the first respondent operated was not one that was acceptable to the claimant. This was a very short employment with the respondent. It is accepted by both parties that the claimant worked in the office for just thirteen days before her employment was terminated. We conclude that on the balance of probabilities bearing in mind the short employment, the difficulties that had arisen in the claimant's working relationship with Mrs Scanlan and the other secretaries, that the employment is likely to have come to an end immediately following the end of the probationary period. The employment would have ended either because the claimant would have been fairly dismissed due to difficult relationship issues or because the claimant herself would have concluded that she did not wish to work in a firm adopting that informal style. The probationary period as defined by the claimant's contract was three months and therefore her employment would have come to an end on 16 January 2007. We therefore award financial loss of that period." "22. We make no award of interest on the awards for injury to feelings or personal injury as we conclude that the major causal factor (supported by the medical evidence) was the dismissal, arising out of the detriment for having made a protected disclosure. An award of interest on damages for personal injury or injury to feelings is made pursuant to the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. An award made pursuant to a breach of s.47B does not come within the ambit of those Regulations." The Claimant's case The Respondent's case The legal principles " ... the amount of the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer." Discussion and conclusions Forward loss Interest Disposal