Afolayan v MRCS LTD

An Employment Tribunal directed to determine a costs application must do so, even where it lacks first-hand knowledge of the earlier hearing. The application may be remitted to a differently constituted tribunal where that is the least unsatisfactory course.

In assessing future loss after unfair dismissal, the tribunal must make a just and equitable assessment under the Employment Rights Act 1996. Temporary alternative employment does not necessarily break causation, but the tribunal may take its duration, the claimant’s prospects and the evidence available at the assessment date into account. Future loss necessarily involves prediction and speculation.

Reinstatement and re-engagement are discretionary remedies. They are not automatic consequences of a finding of unfair dismissal, and contributory conduct, practicability, delay and the claimant’s wishes may make them inappropriate.

The claimant had succeeded in an unfair-dismissal claim. An earlier Employment Appeal Tribunal remitted contribution and remedy to a fresh Employment Tribunal and directed that outstanding issues, including a costs application concerning the original hearing, be determined.

The fresh tribunal assessed compensation, reduced for contribution, and declined to determine the earlier costs application. On review it maintained its assessment of future loss, despite the claimant’s temporary employment subsequently ending, and rejected the contention that reinstatement or re-engagement had not been considered.

The claimant appealed on costs, remedies and future loss. The central issues were whether the tribunal had to determine the earlier costs application, whether its treatment of reinstatement was legally adequate, and whether the assessment of future loss was erroneous or perverse.

1. Costs. The tribunal had been directed by the Employment Appeal Tribunal and the Regional Employment Judge to determine the costs application concerning the earlier hearing. It was therefore obliged to do so. The lack of first-hand knowledge created difficulty but did not remove the obligation. Remission to the original tribunal was inappropriate because it had previously been criticised and might not bring a fresh independent mind. Remission to a new tribunal would create unnecessary expense. The matter was remitted to the existing tribunal as the least unsatisfactory course, with directions for a speedy determination.
2. Reasons and reinstatement. The first remedy judgment did not expressly mention reinstatement or re-engagement. The tribunal should have dealt with the issue, but its review judgment provided a sufficient explanation. There was ample evidence that the remedies were inappropriate, including the claimant’s contributory blameworthy conduct, the lapse of about three years since dismissal, the circumstances of the employment and the claimant’s failure to seek immediate reinstatement or re-engagement. A finding of unfair dismissal did not require either remedy to be ordered. Under sections 113 and 116 of the Employment Rights Act 1996, the tribunal must consider reinstatement first and then re-engagement if reinstatement is refused, while taking account of the statutory factors.
3. Future loss. The tribunal correctly applied the principles in Dench and Whelan. A temporary job does not necessarily end loss attributable to dismissal, but the tribunal is entitled, and not obliged, to take the nature and duration of alternative employment into account. Future loss must be assessed as at the relevant hearing date and inevitably involves prediction. The tribunal had already allowed a substantial period of loss and had factored in the fixed-term nature of the claimant’s employment. Its conclusion that causation was broken by the date of the original remedy hearing was open to it and was far from perverse.
4. The proposed overtime and preparation-time-costs amendments were refused. The appeal was dismissed except that the costs issue relating to the earlier proceedings was remitted.

• Employment Tribunal: The claimant was found unfairly dismissed. Remedy and contribution were later determined by the Milton Tribunal, which assessed compensation, declined to determine the earlier costs application, maintained its future-loss assessment on review, and rejected reinstatement and re-engagement.
• Employment Appeal Tribunal: The appeal was dismissed on future loss, reinstatement and the proposed amendments. The costs application concerning the earlier tribunal proceedings was remitted to the Milton Tribunal.