Employment Tribunal Grants Unfair Dismissal Compensation

Case Number: 3201382/2023 10.7 Judgment with reasons – rule 62 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: London East On: Thursday, 7 November 2024 Employment Tribunal (via CVP)

Before: Employment Judge M. Salter

Representation:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT 1. The Respondent do pay the Claimant a Basic Award in the sum of £12,538.50

2. The Respondent do pay the Claimant a Compensatory Award of £69,303.53 REASONS

References in square brackets below are unless the context suggests otherwise to the page of the bundle. Those followed by a with a § refer to a paragraph on that page and references that follow a case reference, or a witness’ initials, refer to the paragraph number of that authority or witness statement.

References in round brackets are to the paragraph of these reasons or to provide definitions.

INTRODUCTION 1. These are the written reasons for my judgment given orally on Thursday, 7 November 2024.

2. The Employment Tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has

Case Number: 3201382/2023

10.7 Judgment with reasons – rule 62 2 recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunaldecisions. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to permanently remove judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (“the Rules of Procedure”). Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness.

3. These reasons have been prepared at the request of the Claimant.

BACKGROUND The Claimant’s case as formulated in his ET1 4. I set out the facts of this matter in my reasons given at the Final Hearing in August 2024. I will not repeat them here as they are not relevant to this hearing, however, suffice it to say that the Claimant was dismissed from his employment in July 2023. That dismissal was unfair and the Claimant is entitled to compensation for that unfair dismissal.

TODAY’S HEARING General 5. As before the Claimant was represented by [NAME_2] and the Respondent by [NAME_3], both of counsel. I am grateful for the manner they presented their client’s cases, and the focus they showed when asking questions and in their submissions,

6. Again, this was a remote hearing which was not objected to by the parties, being conducted entirely by CVP video platform it was conducted under rule 46 of the Rules of Procedure.

DOCUMENTS AND EVIDENCE

Case Number: 3201382/2023

10.7 Judgment with reasons – rule 62 3 General 7. As the original hearing was listed to consider remedy, I had before me the Claimant’s witness statement prepared for the Final Hearing.

8. I also had a bundle consisting of some 553 pages, a document entitled 2015 Members Guide (V13) to which my attention was not taken, and a one-page email provided by [NAME_4] to the claimant at the end of the Respondents submissions.

9. I determined that this document was relevant and so I permitted its admission, and gave [NAME_3] an opportunity to consider this document and make submissions on it.

10. Before the hearing I took time to read into the witness statements exchanged between the parties and relevant documents, and reminded myself about my findings at the liability hearing.

Witness Evidence 11. I heard evidence from the Claimant who was cross-examined. There were no witnesses called by the Respondent.

SUBMISSIONS Respondent 12. I had written skeleton argument from [NAME_3] and he supplemented this orally.

(a) For how long this should go on for. The Claimant he seeks this until 27/8/25 [44]. (b) Dismissal in July 2023, first job application in September 2024 and even then did not put huge effort in (c) Said today that made enquiries for [NAME_5], and put in front of anyone, no evidence of this or nothing in his witness statement. (d) Speculative letters are not reasonably to mitigate loss (e) The Claimant’s actions inadequate up to September 2024, the C says he has a black mark against his name again no cogent evidence. It was not that was applying and being told this: he says the recruitment agency said that but there no evidence of this; (f) The Respondent has provided evidence of jobs available at the time from [120] the next hundred pages, numerous roles could and should have done. The one flagged was October 2023, in 198, very similar to one the C did apply to in Merseyside; (g) The tender was one with ICB, there is no conflict to stop him getting role with NHS trust. The Claimant did not test this so, the Respondent says,

Case Number: 3201382/2023

10.7 Judgment with reasons – rule 62 4 it would take 3 months or 3-6 months for him to get a role with a similar salary [199, 218] similar in status. (h) Modest work the C has done with MCB and gives credit for at paragraph 12, for most of the time he was not working; (i) Pension Loss: can the C prove to you that dismissing him caused a loss of pension, the R says did not as outside the scheme for almost a year prior to dismissal, made no effort to rejoin the scheme and [261] aware no pension contributions, he was leaving the pension scheme and no efforts to re-sign, so his assertion on [46] that not able to make contributions is not true and the burden is on him to prove it. [73-75] show no pension payments from the R.

Claimant 13. The Claimant made oral submissions which I have considered with care but do not rehearse here in full. In essence, in the course of the hearing, it was submitted that: (a) Compensatory Award: the claimant sought compensation up to the date of the Final Hearing “if not beyond that the point” (b) the Claimant was well informed that likely face difficulties: he sent off speculative letters to see if could obtain work, and he spoke to [NAME_4] who was in employed in High-level NHS role; (c) In terms of the narrative an intervening months cws66, going on holiday is not unreasonable with the period of stress 2022-2023, nor I it unreasonable in September and October started to have conversations with agents, the email vindicates this. He undertakes a series of speculative letters and gets nowhere and this fortifies him in view that needs to get connections networking and get employment that way. (d) Post hearing, C felt able to apply to NHS, vindicated his position that able. (e) Pension loss I disagree with the framing of it, it is not what whether, the position is what would the position be if he had not been dismissed; (f) He made clear how beneficial how NHS pension is. Not a difficult point to accept that he would have rejoined as its very beneficial. We have his evidence that leaving. (g) would also make a second and sperate point, that leaving the pension scheme is bound up with the unfair dismissal and would be bound up, there was agreement that leave, and paid a sum, that was of a piece with the ultimate dismissal that took place.

MATERIAL FACTS General Points 14. From the evidence and submissions, I made the following finding of fact. I make my findings after considering all of the evidence before me, taking into account relevant documents where they exist, the account0 given by the Claimant in this statement and in oral testimony. Where it has been necessary to resolve disputes about what happened I have done so on the balance of

Case Number: 3201382/2023

10.7 Judgment with reasons – rule 62 5 probabilities taking into account my assessment of the credibility of the witnesses and the consistency of their accounts with the rest of the evidence including the documentary evidence. In this decision I do not address every episode covered by that evidence, or set out all of the evidence, even where it is disputed.

15. Matters on which I make no finding, or do not make a finding to the same level of detail as the evidence presented to me, in accordance with the overriding objective reflect the extent to which I consider that the particular matter assisted me in determining the identified issues. Rather, I have set out my principle findings of fact on the evidence before me that I consider to be necessary in order to fairly determine the claims and the issues to which the parties have asked me to decide.

Basic Award 16. This was agreed at the figure of £12,538.50 (Respondent’s submissions: §4).

Compensatory Award 17. The Compensatory Award is not as easy to assess and required me to make various factual findings, which I have.

18. The Claimant seeks financial losses from the date of dismissal up to the date of hearing.

The Steps Taken by the Claimant 19. The Claimant was dismissed in July 2023. He took a period of holiday and returned in September. I agree with the submission of [NAME_2], that this is not unreasonable behaviour.

20. However, it was not until September 2024, over a year later, and after the liability hearing, that the Clamant actually applied for job roles, and, I must agree with [NAME_3], that the applications he did submit were brief and scant in their detail and give me the impression they were not really seriously pursued.

21. The Claimant states that he was advised by [NAME_4] a senior office holder within the NHS that he should await the resolution of his employment

Case Number: 3201382/2023

10.7 Judgment with reasons – rule 62 6 tribunal claim before applying for roles. The claimant did this. I should say that this advice did not come from his lawyers. I do not know what their advice (if any) was.

22. The Claimant’s witness statement as silent on communications he says he had with [NAME_5].

23. I do not consider that the Claimant has shown me he has a “black mark against his name as he claimed in evidence.

Whether the Claimant did take Reasonable Steps to Mitigate his loss 24. Once the December date was adjourned I consider that the Claimant was not acting reasonably in awaiting the resolution to his claim. (a) The next hearing date was a further 8 months away. (b) This would be over a year after the Claimant’s dismissal, (c) there were roles available

25. If he had lost he claim he would have ultimately waited over a year to start applying for roles.

To What extent the Claimant would have mitigated his loss if he had taken those steps 26. [NAME_3] took the Claimant to roles which were similar to that which he applied for a year later: There were suitable and appropriate vacancies the claimant could have applied for.

27. There were 100 pages in the bundle on roles the Respondent says the Claimant could reasonably be expected to apply for,

28. All parties agree that the claimant is extremely experienced and has a powerful work history. whilst jobs at his level and with his expertise may be less available than others, they were available, and doing the best I can on the basis of the evidence I have been taken to, I consider that it would have taken him a further 3 months of searching for employment to obtain similarly paid role: there being jobs out there and, I have heard, [NAME_6] dealing with the Claimant’s skills and expertise. Therefore, I consider that,

Case Number: 3201382/2023

10.7 Judgment with reasons – rule 62 7 based on the material I have before me, the Claimant would reasonably have been expected to have mitigated his losses by March 2024.

29. Accordingly I award the claimant lost income for the period of July 2023 until March 2024, a total of 8 months, after which point he would have, I find been able to mitigate his loss.

30. The Claimant’s payslips show a net monthly salary of £6,523.54. This is a total for 8 months of £50,028.32 31. For the claimed sum of Loss of statutory rights I award the figure of £500 being the amount awarded in this region.

32. This means a Compensatory Award so far of £50,528.32

Pension Loss 33. I was asked to award an amount for loss for the Claimant’s lost pension. It was agreed that I would address this in up to two stages:

(a) firstly I would determine if in principle pension loss should be awarded and, (b) if so, at the second stage I would hear submissions on the amount of that award

I heard submissions from both parties on the principle of whether pension loss should be awarded or not. If I determined that it should be I would then hear submissions on the quantum.

34. On the basis of the evidence I have heard, which from the claimant I must say I was really unconvinced by, I have determined that I will not award a sum for pension loss.

35. At the time of the Claimant’s dismissal he had not been a member of the NHS pension fund for a period of some 8 months, yet both of his Schedules of loss indicated that he was in the pension until his dismissal: this is clearly incorrect.

Case Number: 3201382/2023

10.7 Judgment with reasons – rule 62 8 36. In evidence the Claimant gave an explanation for his departure from the scheme, namely that he had left whilst discussions were in place for his mutually agreed exit. However, when this position fell apart the claimant remained outside the pension scheme. He chose to do so, despite him saying in evidence that rejoining the scheme would be simple, and that the NHS encouraged employees to be member of the scheme.

37. He remained outside the scheme for a number of months, and I have heard of no efforts being made to rejoin it until July 2023, around the time of his dismissal.

38. All this was new evidence. The Claimant’s witness statement does not address this situation or his desire to rejoin the scheme if he had not been dismissed in July.

39. With these facts, I apply the wording of s123 of the ERA, having regard to the loss sustained by the claimant in consequence of the dismissal in so far as the loss is attributable to action taken by the employer, I do not consider that any lost pension is a consequence of the dismissal in this matter.

Earnings Received 40. It was agreed that the Claimant earned a total of £1,961.60.

41. His total loss, therefore is £48,566.72

Grossing up 42. Therefore the Claimant’s awards are a basic award of £12,538.50 and compensatory award of £50,528.32

43. There were then discussions over the appropriate figure for grossing up.

44. The Claimant is entitled to a £30,000 tax free allowance, out of which must be deducted the Basic Award. The Claimant’s tax-free element is, therefore £17,461.50 (£30,000.00 – Basic Award of £12,538.50))

Case Number: 3201382/2023

10.7 Judgment with reasons – rule 62 9 45. The amount to be gross up from the Claimant’s Compensatory Award is, therefore £31,105.22 (Compensatory Award (£48,566.72) – remaining taxfree element (£17,461.50)).

46. I accept the Claimant’s evidence that he is a higher rate tax payer owing to various dividends and other payments he stands to receive. The parties agreed that this meant the grossed-up sum was £51,842.03, to which the tax- free allowance must be added back into, making a total of £69,303.53.

_____________________________________

Employment Judge Salter

23 January 2025

Notes Reasons for the judgment having been given orally at the hearing; written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.

Case Number: 3201382/2023

1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at: London East Employment Tribunal (via CVP)

On: Tuesday, 27, Wednesday, 28 and Thursday, 29 August 2024

Before: Employment Judge M. Salter

Representation:

Claimant: [redacted] Respondent: [redacted]

JUDGMENT

It is the judgment of the tribunal that the Claimant’s claim that he was unfairly dismissed is well-founded and accordingly succeeds.

Employment Judge Salter

Dated: Thursday, 29 August 2024

Case Number: 3201382/2023

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

Heard at:

East London Hearing Centre (via CVP)

On:

Thursday 7 November 2024

Before:

Employment Judge M Salter

Representation:

Claimant:

[redacted] Respondent: [redacted]

JUDGMENT

1. The Respondent do pay the Claimant a Basic Award in the sum of £12,538.50

2. The Respondent do pay the Claimant a Compensatory Award of £69,303.53.

Employment Judge Salter

Dated: 7 November 2024

: