Ward v Ashkenazi

Compensation for unfair dismissal is assessed on a just and equitable basis by reference to loss caused by the dismissal. Where there is a firm finding that the employee would have been dismissed in any event, that finding may cap future loss at the date of the hypothetical dismissal. The assessment is first factual and then discretionary. Loss of benefits in kind, including accommodation and meals, may fall within Employment Rights Act 1996, s 123(2)(a). An Employment Tribunal which wrongly treats such loss as outside its jurisdiction commits an error of law. An uplift may also be awarded for failure to follow statutory procedures.

The Claimant was employed as a residential housekeeper and was automatically unfairly dismissed after seeking written particulars of her employment. The Employment Tribunal awarded compensation equivalent to approximately one month’s pay, having found that she would have been dismissed within that period in any event. It refused compensation for lost accommodation and meal benefits on the basis that it lacked jurisdiction, and refused an uplift for procedural failures.

The Claimant appealed against those aspects of the remedy judgment. The central issues were whether future loss was wrongly capped, whether loss of accommodation and meals was compensable, and whether an uplift should be made.

1. Appeal allowed in part. The Tribunal was entitled to cap compensation for future loss at one month. Its findings established that the Claimant would have been dismissed within that period in any event. Applying O'Donoghue v Redcar and Cleveland B.C. [2001] EWCA Civ 701, a firm finding of inevitable subsequent dismissal may determine the compensable period. This differed from Scope v Thornett [2006] EWCA Civ 1600, where the tribunal had to make a predictive assessment without such a firm finding.
2. The assessment of compensation is first a question of fact and then one of discretion: Dignity Funerals Ltd v Bruce [2005] IRLR 189B. The Tribunal’s reasons could have been fuller, but the parties understood the factual basis for the one-month award. Its omission of the words just and equitable did not invalidate the decision because that statutory test was plainly applied.
3. The Tribunal erred in law by holding that it had no jurisdiction to compensate loss of accommodation and meal benefits. Section 123(2)(a) of the Employment Rights Act 1996 includes reasonably incurred expenses caused by dismissal, and benefits in kind may be taken into account: Paggetti v Cobb [2002] IRLR 861; Scottish CWS v Lloyd [1973] IRLR 93. The EAT assessed the additional compensation itself and did not remit the matter.
4. The Tribunal also erred in refusing an uplift for failure to carry out the statutory procedures. There were no exceptional circumstances justifying a nil uplift. The EAT awarded a 50 per cent uplift.
5. The appeal was allowed in part and otherwise dismissed. Permission to appeal was refused.

• Employment Tribunal, London South: found the dismissal automatically unfair and awarded compensation of £1,841.80, together with compensation under s 38 of the Employment Act 2002; it refused compensation for lost benefits and an uplift.
• Employment Appeal Tribunal: allowed the appeal in part, upheld the one-month cap on future loss, awarded compensation for lost benefits, and awarded a 50 per cent uplift.