Ward v Ashkenazi

In an automatically unfair dismissal claim under section 104 of the Employment Rights Act 1996, the compensatory award under section 123 is a just and equitable assessment of loss caused by the dismissal. Contractual rights and reasonable notice may be relevant, but the assessment is not confined to common-law wrongful-dismissal damages. If the evidence shows that employment would probably have ended within the first year, future earnings may be limited to that period even though the dismissal was automatically unfair. The statutory disciplinary-procedure uplift under section 31(3) of the Employment Act 2002 may apply without one year's service. Section 33 does not create a freestanding unfair dismissal claim during that year.

The appellant had been dismissed after requesting written particulars of her employment. The Employment Tribunal found that the dismissal was automatically unfair under section 104 of the Employment Rights Act 1996; its liability decision was not appealed. At the remedies hearing, it awarded compensation based on a reasonable notice period, together with an additional award for breach of the written-particulars obligation.

The Employment Appeal Tribunal increased the compensatory award for loss of benefits and applied a 50% statutory uplift. The appellant appealed to the Court of Appeal, arguing that the Employment Tribunal had wrongly assessed compensation by reference to notice and that statutory disciplinary procedures meant a hypothetical later dismissal would also have been unfair. The issues included the proper assessment of future loss and the adequacy of the tribunal's reasons.

Maurice Kay LJ delivered the judgment of the court. Stanley Burnton LJ and Gross LJ agreed. The appeal was dismissed.

1. Compensation under section 123. The statutory measure is the amount the tribunal considers just and equitable, having regard to loss sustained in consequence of the dismissal so far as attributable to the employer. The omission of the word equitable from the Employment Tribunal's formulation was not a material legal error. Reasonable notice and contractual context may be relevant considerations, but their use does not convert the assessment into an award of common-law damages for wrongful dismissal.
2. Hypothetical duration of employment. The question whether future loss should reflect contractual rights or the right not to be unfairly dismissed presented a false antithesis. If the evidence shows that employment would probably have continued for the foreseeable future but for the automatically unfair dismissal, substantial future earnings loss may be recoverable. However, the approach illustrated by Polkey v AE Drayton Services Ltd [1998] ICR 142 and applied in O'Donoghue v Redcar & Cleveland BC [2001] EWCA Civ 701 also applies where the hypothetical dismissal would have occurred during the first year, before statutory unfair-dismissal protection arose. The unchallenged finding was that the appellant would have been dismissed within a short time and before completing one year's service. That finding defeated the claim for substantial future earnings.
3. The uncommunicated draft contract did not alter the analysis. It had not been agreed, its disciplinary procedure was described as non-contractual, and the probationary period had not expired. The Employment Tribunal had compensated the appellant for more than a month, covering approximately seven weeks.
4. Employment Act 2002. Although the point was raised late and could have been left undecided, the court addressed it. Section 33 did not create a freestanding unfair-dismissal claim during the first year. Section 31(3) required an uplift of any applicable award, between 10% and 50%, regardless of the employee's length of service where automatic unfair dismissal had been established. The Employment Appeal Tribunal had therefore correctly applied the maximum uplift. This analysis was consistent with Scott-Davies v Redgate Medical Services [2007] ICR 348.
5. Reasons. The remedies judgment had to be read with the liability judgment. Although concise, the Employment Tribunal's reasoning clearly disclosed why it reached its conclusions and was compliant with the standard in Meek v City of Birmingham District Council [1987] IRLR 250. The order of the Employment Appeal Tribunal therefore stood.

• Court of Appeal (Civil Division) dismissed the appeal from the Employment Appeal Tribunal.
• Employment Appeal Tribunal partly allowed and partly dismissed the appeal from the Employment Tribunal's remedies decision. It added compensation for benefits in kind and applied a 50% uplift.
• Employment Tribunal had found automatic unfair dismissal on liability and awarded compensation and an additional award for breach of the written-particulars obligation. The liability decision was not appealed.