ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
LORD JUSTICE GROSS
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Mr Adam Solomon (instructed by Comptons Solicitors) appeared on behalf of the Respondent.
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Lord Justice Maurice Kay:
"Subject to the provisions of this section … 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."
I now turn to the facts, which I take primarily from the judgment of the ET on liability.
"We find that Mr Stephenson deliberately withheld issuing the written terms of employment that had been forwarded to him […] when the claimant made her request. It was apparent from the evidence that Mr Stephenson had no grounds on which to withhold the written terms, the instructions to him had been clear and unequivocal."
"36. …It is the Tribunal's view that, by 10 March 2008, Mr Stephenson had decided that he would dispense with the [appellant's] services. He would have been familiar with the contents of the terms and conditions and may have had concerns at the prospect of [the appellant] being issued with a document setting out her job title, job description and contractual rights and that she would be in a position to enforce them. We conclude that set against the disagreements that had arisen between them about her role and duties and Mr Stephenson's view that [she] was a disruptive influence on the household he preferred to terminate her employment unhindered by the prospect of her invoking any rights to which she was entitled, that were set out in the draft contract.
37. …The tribunal concluded that when on 10 March 2008 [the appellant] asked Mr Stephenson for a job description she was asserting a statutory right to be given a copy of the written statement of particulars of her employment. We find that [her] act of asking for her contract amounted to an assertion to the Respondent that her statutory right had been infringed within the meaning of Section 104(b) of the Act.
39. …We are satisfied that Mr Stephenson had [her] in his sights as an employee whom he intended to dismiss. We are satisfied that [she] would in all likelihood have been dismissed within a short time. The Tribunal considered it likely that Mr Stephenson chose the occasion ... to dismiss her to avoid giving her the opportunity of stalling or challenging his decision. Therefore, the Tribunal found, on the balance of probabilities, that the principal reason for her dismissal was that [she] asserted a statutory right to be given a written statement of particulars of employment."
The case was then adjourned to a remedies hearing which took place on 30 November 2008 and which resulted in the award of compensation, as I have previously related.
"Turning then to the compensatory award, we recognize that the minimum period of notice would have been one week or one week's pay in lieu of notice, pursuant to section 86A of the 1996 Act; however, in awarding a compensatory award the Tribunal must have regard to what it considers would be a just award having in mind what a reasonable period of notice would be. We considered that [the appellant] by working in a residential position might reasonably expect to receive one month's notice in order to have sufficient time to arrange her affairs, which would include finding alternative accommodation. We find that the Claimant did not fail to mitigate her loss during that initial one month period. The Tribunal therefore awards [the appellant] compensation of one month's pay for the period commencing 1 April 2008 which we understand from the parties to be the sum of £1,841.80."
It follows from that that the period for which the appellant was actually compensated was from 10 March until the end of April, namely a period slightly in excess of seven weeks.
"Should future loss in an automatically unfair dismissal case be based on the employee's contractual rights or on her right not to be unfairly dismissed?"
"An Industrial Tribunal must award such compensation as is 'just and equitable'. If the facts are such that an Industrial Tribunal, while finding that an employee/applicant has been dismissed unfairly (whether substantively or procedurally), concludes that, but for the dismissal, the applicant would have been bound soon thereafter to be dismissed (fairly) by reason of some course of conduct or characteristic attitude which the employer reasonably regards as unacceptable but which the employee cannot or will not moderate, then it is just and equitable that compensation for the unfair dismissal should be awarded on that basis."
"for any reason or none, provided that it was not a reason made unlawful by statute."
For these reasons, I reject the main ground of appeal.
"Given that the contract provided for a staged disciplinary process, it seems unlikely that the appellant could have been fairly dismissed within a month."
However, there are, with respect, insuperable difficulties with this analysis, not least the fact that "the contract" containing disciplinary and grievance procedures never became the subject of agreement with the appellant to whom its provisions were not communicated prior to her dismissal. Indeed, she was dismissed for seeking to assert her statutory rights in that regard. Moreover, even if it had been, its express provisions described the disciplinary procedure as "non-contractual" and stipulated that no notice of dismissal would be required during the three-month probationary period which had yet to expire when the appellant was dismissed. In any event, the prescribed procedure, if it had applied, was not tied to a timescale and it is reasonable to suppose that in domestic employment it would be operated speedily. As it was, the appellant was compensated not just for a month but for a period of seven weeks.
Lord Justice Stanley Burnton:
Lord Justice Gross:
Order: Appeal dismissed