Appeal No. UKEAT/0472/11/JOJ
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On
13 June 2012
Before
THE
HONOURABLE MRS JUSTICE SLADE DBE
MRS M V MCARTHUR FCIPD
MR D NORMAN
KINGS CASTLE CHURCH APPELLANT
MR
F OKUKUSIE RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
UNFAIR DISMISSAL – Compensation
The Employment Tribunal erred in law in awarding compensation for
loss of earnings for a period after the Claimant’s leave to remain in this
country, extended under Immigration Act 1971
section 3C(2)(c), had expired. Although the ET noted that the Claimant
had been informed that the UKBA had refused his application for indefinite
leave to remain and that he could stay pending determination of his appeal, the
ET failed to make findings as to when his appeal was dismissed. The Claimant
had failed to comply with an Order of an Employment Judge to disclose relevant
documents passing between him or his solicitors and the UKBA. One such which
was before the EAT showed that he had no right to remain after 10 May 2010.
Questions of causation which may arise in other cases were not material to this
appeal. The answer to the issue the EAT was rightly directed by the President
to determine was whether the ET were entitled to award compensation to the
complainant on the basis that he was permitted to work when he was not. Appeal
allowed. Compensatory award set aside and an award calculated up to the last
day the Claimant was permitted to work substituted. The Claimant subsequently
succeeded in an application for a permit but this was nearly a year after the
expiry of the original permission.
THE HONOURABLE MRS
JUSTICE SLADE DBE
Introduction
1.
The King’s Castle Church appeals from the Judgment of an Employment Tribunal
sent to the parties on 22 November 2010, by which compensation was awarded for
unfair dismissal of £19,210. We will refer to the parties by their titles
before the Employment Tribunal, the Claimant and the Respondent.
2.
The Employment Tribunal held that the Claimant had been unfairly
dismissed; there is no appeal from that finding. By direction of the President
of the Employment Appeal Tribunal, Langstaff P, the issues before us to be
determined are: first, whether the Employment Tribunal were entitled to order
compensation for a period of time as though the Respondent could work lawfully
during that time, when he could not; and second, whether the Respondent failed
to produce documents relating to his immigration status that were necessary for
the Employment Tribunal to understand the argument as to his entitlement to
work.
3.
It was agreed on behalf of the Claimant, by Mr Modha in his very helpful
skeleton argument that the Claimant had no right to work in paid employment
after 10 May 2010. The Claimant required a permit to work and a permit to be
in this country. He is Nigerian. It is also agreed on behalf of the Claimant
that before the Employment Tribunal the Claimant did not, save for a few of
them, produce certain documents which he had received from the UK Border Agency
regarding his immigration status and his applications for leave to remain and
to work. In particular, he did not produce to the Employment Tribunal a letter
dated 18 May 2010 from the UK Border Agency. So far as that letter is
concerned the Claimant says, through counsel, that he provided that letter to
his solicitor but the solicitor did not insert that letter in the bundle of documents
for use before the Employment Tribunal.
The facts
4.
From the outline of facts given in the judgment of the Employment
Tribunal, it appears that the Claimant was first a volunteer and then employed
by the Church. Mr Oluwatula was the founder of the Respondent church. When the
church became a charity he was the charity’s Chief Executive. The Claimant was
a student volunteer at the church in 2003. On 20 September 2005 the church
wrote to the immigration agency supporting the Claimant’s application for leave
to remain in the United Kingdom. On 6 March 2006 the Claimant started work as
a part time salaried employee and associate pastor. On 24 October 2006 the Claimant
and his wife and children were grated further leave to remain until 11 October
2009.
5.
In August 2009, two months before the leave to remain was due to expire,
the Claimant asked the Respondent if they would give a letter in support of his
application for indefinite leave to remain. The Claimant was under the
mistaken belief that he satisfied the requirements for being granted such
indefinite leave, despite the fact that he had not been in paid employment for
five years, in a category of work not requiring a work permit. Being a minister
of religion is in such a category. However, the five-year provision was not
satisfied.
6.
On about 14 September 2009 the Respondent provided such a letter of
support. Thereafter difficulties arose between the Claimant and the Respondent,
which ultimately led to his being given a final written warning and his summary
dismissal on 10 February 2010. He appealed against his dismissal, but that
appeal was rejected on 29 March 2010. In the meantime the Claimant
received a letter from the UK Border Agency on 19 January 2010. That letter
was referred to in paragraph 30 of the Employment Tribunal’s Judgment:
“On 19 January 2010 the Claimant received from the UK Border
Agency a notice of immigration decision, which stated that his application for
indefinite leave to remain in the United Kingdom as a Minster of Religion had
been refused on the basis that ‘the Secretary of State is not satisfied that
you have spent a continuous period of 5 years in the United Kingdom in this capacity’.”
7.
The Tribunal observed that the notice, went on to specify the Claimant’s
appeal rights and in a “Reasons given for refusal” letter it was clear that,
provided the Claimant appealed the decision, he did not have to leave the
country. The Tribunal noted that the Claimant received such notification on 21
January 2010, but did not inform the Respondent of it, and further, that an
email which he subsequently sent the Respondent on 3 February in reply to a
request by the Respondent for an update on his work permit situation was, as
the Tribunal found, misleading, because the Claimant had said:
“On 3 February 2010 email, since your major concern has always
been and still is the work permit and what I got is an acknowledgement of the
receipt of the application in their possession. I feel I should wait until the
work permit comes through before I bring it to your notice.”
The Tribunal considered that to be misleading because by that
time the notification that his application had been refused had already been
received by the Claimant.
The Tribunal decision
8.
The Tribunal concluded that the principal reason for the dismissal of
the Claimant was, as set out in paragraph 48 of the Judgment, the Claimant’s
conduct in not providing immigration information when he had it and misleading Mr
Oluwatula about that. The Tribunal concluded that the dismissal was unfair
because:
“49. […] in our view no reasonable employer, motivated by
legitimate concern or fear would not take steps to establish whether those fears
were well founded or not. In this case the claimant was not in the UK illegally until his appeal rights were exhausted and the respondent’s fears were
therefore ill founded.”
9.
The Tribunal further held at paragraph 51 of the decision:
“[…] we still come to the conclusion that no reasonable employer
would have failed to give the claimant a clear warning that without this
presentation of his immigration documents, he would be dismissed.”
For those reasons the Tribunal held that the dismissal was
unfair.
10.
The Employment Tribunal then considered remedy. In paragraph 53 they
held:
“The claimant was seeking reinstatement and the Tribunal considered
both reinstatement and reengagement very carefully: is this a case in which
reinstatement or reengagement is not appropriate bearing in mind the
immigration issues which have been present throughout.”
The Tribunal concluded that reinstatement or reengagement was not
appropriate.
11.
They then considered the issue of compensation. The Tribunal held at
paragraph 55:
“We then came to consider compensation and we have made the
following award, which accepts the claimant’s assertion that it will take him a
further six months from the date of the Tribunal hearing to replace the
earnings either by way of other employment or possibly from the establishment
of his own fellowship and any remuneration that can be derived from that.”
12.
In paragraph 56 the Tribunal calculated a basic award in respect of
which there is no appeal. The Claimant was given four weeks’ notice after his dismissal
on 10 February and thereafter he was awarded loss of earnings calculated on the
basis of the earnings he was receiving from the Respondent. The amount ordered
was £9,450, based on 31.5 weeks’ net pay. The Tribunal then added a further six
months loss of salary, and awarded £250 for loss of statutory rights. They
applied a 10 per cent uplift on account of what was described as, “the respondent’s
unreasonable failure to comply with the ACAS Code.” We consider that reference
to the ACAS code must be a reference to the now repealed statutory dismissal
procedure, rather than the ACAS code. The Tribunal then deducted 10 per cent from
the award to recognise the Claimant’s contributory fault.
The submissions of the parties
13.
Mr Onipede for the Respondent, in commendably succinct submissions,
contended that the Employment Tribunal erred in awarding compensation in
respect of a period when it was agreed that the Claimant was not entitled to
work. That was a period from 11 May onwards. He contended that the Employment
Tribunal did not have before it, because it was not provided by the Claimant, with
relevant immigration information. The Claimant had been obliged to disclose that
information to the Respondent and produce it to the Tribunal by an order made
at a case management discussion. That order had not been complied with. It
was contended that the Claimant could not have continued to be employed by the Respondent
without the appropriate work permit. Therefore there was an error of law by
the Tribunal proceeding as it did to award compensation without consideration
of the Claimant’s right to work.
14.
The order made at a case management discussion ordering the disclosure
of relevant material, was an order made by Employment Judge Hargrove on 6 July
2010. The material provision is at paragraph 2:
“By no later than 3 August 2010 the claimant must disclose to
the respondent all communications in his possession or control or that of his
immigration solicitors, CM Solicitors, between the Claimant and his solicitors
on the one hand, and the Home Office or Border Agency on the other concerning
his immigration status and his right to work as a minister of religion from
2006 onwards.”
15.
Mr Modha for the Claimant says that, but for the Claimant’s unfair dismissal,
he would have been provided by the Respondent employer with a letter in support
of his application for permission to remain in this country or in support of a
fresh application. The likelihood is that armed with that support he would
have been given leave to remain and he would have been permitted to continue to
work. Mr Modha contended that Employment Tribunals in assessing compensation
do not err if they speculate as to what may happen. In this regard he accepts
that the argument he advances does support the decision of the Employment Tribunal
is based on two speculations: first, that the Respondents would have given a
letter of support to the Claimant to enable him to progress his application
with the UK Border Agency; and further, speculation that the UK Border Agency,
with that material, would have granted his application. Mr Modha draws our attention
to a Judgment of the Employment Appeal Tribunal, HHJ Hargrove QC and members in
Hilton International Hotels UK Ltd v Faraji [1994] ICR 259, in
which they dismissed an appeal by employers from a decision of a Tribunal which
based an award of compensation on the approach taken in personal injury cases
in determining what was just and equitable compensatory award.
Discussion
16.
Pursuant to the Employment Rights Act 1996, section 123, a
compensatory award is subject to the provision in sub-section (1):
“Subject to the provisions of this section and sections 124(a)
and 126, 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 insofar as that
loss is attributable to action taken by the employer.”
17.
Whilst in another case it may be relevant and fruitful to consider
causation arguments, this Appeal Tribunal is not a Tribunal of fact. We
address the question posed to us by the direction of the President having
regard to the Judgment of the Employment Tribunal considering the material that
was and which should have been before them. The Employment Judge was asked
certain questions by the direction of HHJ David Richardson in the Employment
Appeal Tribunal. The Employment Judge was asked how certain findings were taken
into account in the Tribunal's award of compensation. The findings referred to
were as follows:
“Further findings made by the Tribunal but omitted from the
written reasons were as follows: A work permit is not required in order to work
in the UK as a ‘Minister of religion’ – this is an exception to the general
rule. The Claimant could, therefore, work as a minister of religion in the UK (despite the initial decision letter from the Border Agency which he received on 19 January 2010)
until such time as his presence in the UK became illegal. He was entitled to
work in the UK after 19 January 2010 as a minister of religion and that was the
role in which he was employed by the Respondent.”
18.
In response to the question posed the Employment Judge replied:
“The Tribunal considered that the Claimant could lawfully have
continued in the employment of the Respondent after 19 January 2010 as a
minster of religion. His losses were therefore attributable to the action of
the Respondent, in dismissing him, until such time as those losses could reasonably
be mitigated. The reasonableness of his attempts to mitigate those losses was
assessed against the fact that the Claimant would require a work permit to
engage in work other than as a minister of religion and the likelihood or
otherwise of that being available.”
19.
It is to be noted that there was a reference by the Employment Tribunal in
their decision to the letter which was before them of 19 January that stated that
the Claimant’s application for indefinite leave to remain in the UK as a minister of religion had been refused. The Tribunal noted that the notice went on
to specify the Claimant’s appeal rights, and in a reasons given for refusal
letter it was clear that provided the Claimant appealed the decision he did not
have to leave the country. The Tribunal therefore seemed to have or ought to
have appreciated from their record of this letter that it was material to know
whether the Claimant appealed from this refusal and, if so, when and how that
appeal was determined. However, there is no finding of fact made by the Tribunal
as to these very important matters.
20.
There has been included in the papers before us a document which should
have been before the Employment Tribunal which the Claimant says he gave to his
solicitor but his solicitor did not put in the bundle. Whoever’s fault it was,
it was simply not in the bundle, and it should have been there. This is a
letter dated 18 May 2010 from the UK Border Agency addressed to the Claimant’s
solicitors saying:
“As you are aware your application to remain in the United Kingdom was refused on 18 January 2010. You appealed this decision and the appeal
was subsequently dismissed on 12 March 2010 and the following High Court review
request refused on 7 April and 10 May 2010 respectively and your appeal rights
were exhausted on 10 May 2010. You therefore have no legal basis to remain in
the United Kingdom.”
21.
It is quite rightly agreed by counsel on behalf of the Claimant that he
had no right to work in this country after 10 May 2010 until eventually an
application made on 5 April 2011, almost a year later, for leave to remain, was
granted. The Employment Tribunal therefore, in our judgment, proceeded on a
basis which omitted enquiry into a material matter, to which they had been
alerted by the 19 January letter: whether there had been an appeal against the
refusal of indefinite leave to remain, and if so, when that appeal had been
determined. Those matters are not in dispute, nor is their consequence in
dispute: that the Claimant had no right to continue to work in this country
after 10 May 2010.
Conclusion
22.
In our judgment, the Employment Tribunal erred in failing to enquire
into and make findings in respect of material matters to which they had been
alerted by the finding that they made regarding the 19 January 2010 letter and by
the Claimant’s failure to produce documentation which he was ordered by another
Employment Judge to produce; the letter of 18 May 2010 and other
documentation. The Tribunal, being well aware that there were questions about
the Claimant’s immigration status, erred in making an award of compensation on
the assumption wrongly made that the Claimant could continue in employment with
the Respondent. They erred in making their award of compensation based on his
earnings with the Respondent when in fact he would not have been permitted to continue
in such employment. Accordingly, this appeal succeeds.
23.
We set aside the award of compensation made and substitute for it an
award of loss of earnings up to 10 May 2010 together with the other
unchallenged elements in the award of compensation. Counsel has very helpfully
reached an agreed figure: £4,464.90. Accordingly, we set aside the award made
by the Employment Tribunal of £19,018 and substitute for it an award of
£4,464.90.
