Ur-Rehman v Ahmad (on behalf of Doncaster Jamia Mosque)

Stigma damages for difficulty in obtaining or retaining employment require evidence that stigma had a real effect on the claimant’s employment prospects. Stigma may be inferred, but the inference must rest on a sound evidential foundation. In relation to a past dismissal by another employer, the issue is whether stigma probably caused the dismissal, rather than the valuation of a lost chance that it might have done so. Where evidence is vague, contradictory or too uncertain to establish loss, an Employment Tribunal may rely on the burden of proof and dismiss the claim. An appellate tribunal should not second-guess findings of fact supported by evidence.

The claimant, an imam, was found by the Employment Tribunal to have been unfairly dismissed from employment at a mosque. The proceedings then concerned compensation. The Tribunal limited loss of earnings under the Polkey principle and rejected claims for stigma damages and unpaid holiday pay.

On appeal, the claimant argued that the Tribunal had wrongly assessed the stigma claim and had misunderstood his evidence about holidays. The central issues were whether the evidence supported a finding that proceedings against the former employer had caused later loss of employment, and whether the holiday evidence was sufficiently clear to support an award.

1. Appeal dismissed. The Tribunal was entitled to reject the claim for stigma damages and holiday pay.
2. Evidence is required to support a claim that stigma caused difficulty in obtaining or retaining employment. Although stigma may be inferred, the inference must have a sound evidential foundation. The relevant evidence may include the claimant’s overall employment search and the circumstances of particular applications or dismissals.
3. Where the alleged loss concerns a past dismissal by a subsequent employer, the question is whether stigma probably caused that dismissal. The loss-of-chance approach is not used to evaluate whether the past dismissal probably occurred because of stigma.
4. The Tribunal found that the claimant had not shown a causal link between statements made by a trustee of the former mosque and his dismissal by the subsequent employer. That finding was based on evidence and was not perverse. The Tribunal’s reasons were cryptic but sufficient in context, particularly because the claimant had obtained other employment and the wider evidence did not establish stigma.
5. The holiday-pay claim was too uncertain. The evidence about days off and holidays was contradictory and unclear, and the claimant had not quantified the holiday said to have been taken without payment. The Tribunal had not misunderstood the evidence and was entitled to conclude that the claim was unproved.
6. A Tribunal will normally make findings of fact, but where evidence is too uncertain or conflicts cannot be resolved, it may rely on the burden of proof and state that the claim has not been established.

• Employment Tribunal: accepted that the dismissal was unfair, limited compensation applying the Polkey principle, and dismissed the stigma-damages and holiday-pay claims.
• Employment Appeal Tribunal: dismissed the appeal, holding that the Tribunal had made no error of law.