Ward v Ashkenazi

The Court of Appeal dismissed the appellant's appeal against an Employment Appeal Tribunal remedies order. The Employment Tribunal had found an automatically unfair dismissal under section 104 of the Employment Rights Act 1996 because the employee was dismissed after asserting her statutory right to written particulars under section 1. The principal legal issue was the appropriate assessment of the compensatory award under section 123 of the 1996 Act and whether that assessment should be governed by contractual notice or the employee's statutory protection.

The court held that the Employment Tribunal and the EAT had correctly applied the "just and equitable" test by taking into account the factual finding that, even absent the asserted statutory right, the employee would in all likelihood have been dismissed within a short time. The court also held that the Employment Act 2002 provisions permitted an uplift under section 31(3) and a separate sum under section 38(3) but did not create a freestanding entitlement to unfair dismissal protection in the first year.

Background and procedure: This is an appeal from an Employment Appeal Tribunal (EAT) decision which had partly allowed and partly dismissed an appeal from an Employment Tribunal (ET) remedies decision. The ET had earlier (liability judgment) found that the claimant, Ms Ward, had been automatically unfairly dismissed under section 104 of the Employment Rights Act 1996 for asserting her right to a written statement of particulars under section 1. The ET awarded compensatory sums and declined an uplift under the Employment Act 2002; the EAT corrected parts of that award and applied a 50% uplift under section 31(3) of the 2002 Act.

Facts: The claimant began domestic employment on 7 January 2008. Draft written particulars had been prepared but the manager, Mr Stephenson, deliberately withheld issuing them. On 10 March 2008 the claimant asked for a job description (asserting her statutory right) and was dismissed that day. The ET concluded the manager had decided to terminate her employment and that the principal reason for dismissal was her assertion of the statutory right.

Relief sought and issues: The appellant sought to challenge the EAT's remedies order, arguing the ET misdirected itself in assessing compensation under section 123 (by adopting a contractual/notice-based approach rather than the "just and equitable" statutory test), and contesting the application of the EAT's uplift. The court also considered (by consent to address a late point) whether statutory disciplinary-procedure protections in the Employment Act 2002 could render a hypothetical future dismissal unfair in the first year.

Court's reasoning: The court rejected the submission that the ET misapplied section 123, finding no material legal error and concluding the ET had the "just and equitable" test in mind. Applying the principles in Polkey and O'Donoghue, the court accepted the ET's factual finding that the claimant would in all likelihood have been dismissed within a short time regardless of her requesting written particulars. That fact limited the scope for future-loss compensation. The court further held that the Employment Act 2002 does not create a freestanding right to claim unfair dismissal in year one but does permit an uplift under section 31(3) and a separate award under section 38(3); the EAT had therefore given the claimant the full benefit of available statutory remedies. The court also rejected a Meek-based reasons challenge.

Appeal dismissed. The Court concluded that the Employment Tribunal and the EAT had not erred in law or in principle in assessing compensation under section 123 of the Employment Rights Act 1996. The ET's factual finding that the employee would in all likelihood have been dismissed within a short time was decisive under the Polkey/O'Donoghue line of authority, limiting future-loss compensation. The EAT was correct to apply the uplift under section 31(3) of the Employment Act 2002 and to award the separate sum under section 38(3); the 2002 Act does not convert first-year employees into persons with a freestanding right to claim unfair dismissal on procedural grounds.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (HHJ McMullen QC, Sir Alistair Graham and Ms G Mills), which had itself partly allowed and partly dismissed an appeal from the Employment Tribunal. The ET had earlier decided liability (automatic unfair dismissal under section 104 of the Employment Rights Act 1996); that liability finding was not appealed. Neutral citation for this Court of Appeal judgment: [2011] EWCA Civ 172.