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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR C EDWARDS
MR J HOUGHAM CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
JUDGMENT
For the Appellant | MS ALISON RUSSELL (Of Counsel) Instructed by: Messrs ASB Law Solicitors 12 Mill Street Maidstone Kent ME15 6XU |
For the Respondent | MS HARINI IYENGAR (Of Counsel) |
Unfair Dismissal. Whether deductions to be made from loss of earnings in respect of notional childcare costs for returning mother and chance of fair dismissal (Polkey). No error of law. Appeal dismissed.
HIS HONOUR JUDGE PETER CLARK
Background
The Liability decision
(1) Constructive Unfair Dismissal
The requirement by the Respondent that the Claimant cease to work principally from home in Slough to attending for work at Pelican Reach amounted to a fundamental breach of her contract of employment entitling her to treat herself as constructively dismissed.
(2) Sex Discrimination
The Remedy decision
The Remedy Appeal
Discussion
Childcare
"childcare costs which would notionally have had to be incurred to enable the [Claimant] to return to work should be set off in full against her damages for loss of earnings.'
I applied that approach, sitting with members, in Visa International Service Association v Paul [2004] IRLR 42, paragraph 42 to the particular facts of that case. Ms Russell further submits that such an approach is consistent with the House of Lords decision in Dunnachie v Kingston upon Hull City Council [2004] IRLR 727 as further explained by Burton P in Morgans v Alpha Plus Security Ltd [2005] IRLR 234, particularly at paragraph 22. The statutory basis for the recovery of compensation for unfair dismissal under Section 123 ERA is the reimbursement of the loss suffered. If the Claimant would, after returning to work with the Respondent following maternity leave, have been met with the costs of caring for her new child the whole of that notional cost must in our judgment, be set against the net lost earnings during the relevant period of unemployment in order to reflect her actual loss. On this aspect of the case we prefer the submissions of Ms Russell to those of Ms Iyengar.
Redundancy
Conclusion