Clarke v Hasmonean High School

When assessing compensation for unfair dismissal, a tribunal may consider whether the claimant would have lost employment in any event. That issue must be determined by hearing relevant evidence and making concrete findings of primary fact. Untested assertions or submissions cannot substitute for evidence where the tribunal is required to make a specific finding about the claimant’s future employment. A compensation decision based on such material is unsafe and should be remitted for reconsideration.

The claimant succeeded in an unfair-dismissal claim after the respondent school was debarred from defending because it had not entered an ET3. The Employment Tribunal awarded a basic award and limited the compensatory award to 31 December 2009, concluding that the claimant would by then have been dismissed in any event. That conclusion was based on matters advanced in cross-examination and submissions, although the relevant witness had not given evidence. The claimant appealed against the compensation assessment. The central issue was whether the tribunal had lawfully determined the likely duration of the claimant’s employment without hearing evidence and making primary findings of fact.

1. Appeal allowed. The compensation issue was remitted to a different Employment Tribunal.
2. The question whether the claimant would have lost his employment in any event was a specific factual issue. It could not properly be resolved merely from untested assertions or legal submissions.
3. Tribunals routinely assess future employment prospects, but they must do so by hearing evidence and making a concrete finding of primary fact before deciding the period of compensable loss.
4. The Employment Tribunal had erred in treating the matter as based on forecasts which could be determined without findings of fact. Its conclusion that the claimant would have been dismissed by 31 December 2009 was therefore unsafe.
5. The remitted tribunal was directed to hear evidence and make findings of fact about how long the claimant would have continued teaching. The judgment noted that the claimant had since died and expressed the hope that the matter could be resolved.

• Employment Tribunal: The claimant succeeded in his unfair-dismissal claim. The tribunal awarded a basic award and assessed compensatory loss only to 31 December 2009.
• Employment Appeal Tribunal: The compensation assessment was set aside and remitted to a different Employment Tribunal for evidence and findings of fact.