Jones v The City And County Of Swansea

In assessing compensation under section 123 of the Employment Rights Act 1996, an Employment Tribunal may apportion loss where dismissal competes with other causes. The question is whether the loss was caused to a material extent by the dismissal, followed by a just and equitable assessment.

An appellate tribunal should not interfere with factual findings supported by evidence, including findings based on expert medical opinion. A narrative judgment complies with rule 30(6) where sufficient substance discloses the issues, findings and reasoning. A procedural uplift is a discretionary assessment; brief reasons may suffice if they explain the basis of the percentage awarded. A new point requiring further evidence will ordinarily be admitted only in exceptional circumstances and for compelling reasons.

The Employment Tribunal awarded an employee £33,518.86 following a successful unfair-dismissal claim. It found that the dismissal materially contributed to her incapacity for work, but that other factors also contributed, and therefore awarded 50 per cent of wage loss from September 2005 to April 2008. It awarded a 25 per cent uplift for breach of statutory dismissal procedures.

The employee appealed against the apportionment, the ending of compensation in April 2008, the adequacy of the uplift and the sufficiency of the reasons. The employer cross-appealed, seeking to argue that the loss resulted from pre-dismissal conduct rather than the dismissal. The central issues were causation, appellate review of factual findings, adequacy of reasons and whether the new cross-appeal point should be entertained.

1. Appeal and cross-appeal dismissed. The Employment Tribunal’s award and its 50 per cent apportionment, cessation of loss in April 2008 and 25 per cent uplift disclosed no error of law.
2. For section 123 of the Employment Rights Act 1996, it was permissible to ask whether loss was caused to a material extent by the dismissal and, where causes competed, to apportion the loss. The Tribunal’s approach, drawn from Dignity Funerals v Bruce, was sound. A strict “but for” approach was unnecessary.
3. The Tribunal was entitled to assess the medical evidence broadly. It could accept part of an expert’s opinion and reject other parts, provided there was a rational evidential basis. The possibility of post-natal depression, pre-existing vulnerability, pre-dismissal depression and litigation anxiety supported the 50 per cent assessment.
4. The duration of future loss was quintessentially a matter for the fact-finding Tribunal. The conclusion that dismissal ceased to be a substantial or important cause by April 2008 was supported by the medical evidence and was not perverse.
5. The narrative reasons substantially complied with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Sufficient substance could be extracted to identify the issues, factual findings and conclusions. The explanation that there had been a flawed investigation sufficiently explained the 25 per cent uplift.
6. The employer’s proposed reliance on GAB Robins (UK) Ltd v Triggs was a new point. It would require further expert evidence and remission. Applying the established appellate approach, there were no exceptional circumstances or compelling reasons to entertain it.

• Employment Appeal Tribunal: dismissed the employee’s appeal and the employer’s cross-appeal.
• Employment Tribunal: awarded compensation of £33,518.86 following the remedies hearing. Liability had previously been determined in the employee’s favour.