Hill v G & R Pollard Engineering Ltd

An Employment Tribunal must give intelligible reasons for each material element of a compensation award. This includes the basis and period of any future loss calculation, the reasons for selecting an uplift for procedural default, and the factual basis for any reduction reflecting the claimant’s contribution to dismissal. Uncertainty inherent in assessing future loss does not remove the duty to explain the calculation. A finding that the employer behaved reprehensibly does not itself answer whether the claimant’s conduct caused or contributed to the dismissal under section 123(6) of the Employment Rights Act 1996. Where the reasons are materially inadequate, the appellate tribunal may allow the appeal and remit the relevant issues to the original Tribunal for reconsideration.

Mr Hill successfully claimed that he had been constructively and unfairly dismissed by G & R Pollard Engineering Ltd. The Employment Tribunal awarded compensation, including loss of earnings to 31 December 2009, a 10 per cent uplift under section 31 of the Employment Act 2002, and a 70 per cent reduction for the claimant’s contribution to his dismissal.

The appeal challenged the adequacy of the Tribunal’s reasons for the disputed elements of the award. The central issues were whether the calculation of future loss, the level of the statutory uplift, and the contribution reduction had been sufficiently explained.

1. The appeal was allowed and the disputed compensation issues were remitted to the same Employment Tribunal.
2. The Tribunal’s award of £3,600 for loss of earnings was not adequately reasoned. The judgment did not explain which rates had been selected, whether the calculation assumed a proper disciplinary demotion, whether night work might have been available with the new employer, or how the relevant period had been determined. The award was therefore not compliant with the requirement identified in Meek v City of Birmingham District Council [1987] IRLR 250.
3. The Tribunal had also failed to explain why it retained the 10 per cent starting uplift under section 31 of the Employment Act 2002, despite findings indicating a wholesale disregard of the statutory procedures. The uplift therefore required reconsideration with reasons.
4. Section 123(6) of the Employment Rights Act 1996 required a reduction only where the dismissal was to some extent caused or contributed to by an action of the claimant, in such proportion as was just and equitable. The employer’s reprehensible conduct did not determine that question. The Tribunal might have had proper reasons for fixing a 70 per cent reduction, but it had not stated them.
5. The remitted Tribunal could receive further evidence or submissions and was directed to reconsider loss of earnings, the section 31 uplift, and the section 123 reduction. The undisputed parts of the award were not to be revisited.

• Employment Appeal Tribunal: allowed the appeal and remitted the disputed elements of the compensation award to the original Employment Tribunal.
• Employment Tribunal: upheld the constructive unfair dismissal claim and made the compensation award challenged on appeal.