Roberts v Aldi Stores Ltd

A tribunal must determine claims which remain extant and have not been withdrawn or abandoned. Where a limitation defence is raised, it may properly be determined as a preliminary issue.

Without prejudice material which is properly privileged is inadmissible at trial without the parties’ consent. A tribunal must therefore resolve whether the relevant communications were without prejudice before relying on them.

In assessing compensation for unfair dismissal, the relevant question is whether the claimant unreasonably refused an open offer of re-employment and thereby failed to mitigate loss. A provision concerning refusal of reinstatement does not govern a basic award where no such offer arises.

The claimant, a store manager, brought claims for unfair dismissal, notice and holiday pay, written reasons for dismissal, and breaches of the Working Time Regulations 1998. The respondent conceded unfair dismissal before the Employment Tribunal hearing, which then assessed remedy and awarded £10,051.

On the claimant’s appeal, the Employment Appeal Tribunal considered whether the Tribunal had failed to determine the remaining claims, whether it had wrongly admitted a letter headed without prejudice, and whether it had wrongly limited loss of earnings on the basis of a refused offer of re-employment.

The central issues were the admissibility of the communications, the outstanding Working Time Regulations claims and their limitation position, and mitigation of loss in the unfair-dismissal remedy.

1. Appeal allowed. The Employment Tribunal had not determined the Working Time Regulations, notice-pay, holiday-pay and written-reasons claims. The claimant had neither abandoned nor withdrawn them. The extant claims therefore had to be determined, subject where applicable to limitation.

2. The Working Time Regulations claims under regulation 30(1) remained to be decided. The respondent’s limitation contention under regulation 30(2) was to be determined as a preliminary matter. On the claimant’s factual case, no claim arose under section 45A of the Employment Rights Act 1996; any claim under section 101A was subsumed by the concession of unfair dismissal.

3. The Employment Tribunal had to reconsider the admissibility of the letter dated 1 July 2010 and the related meetings. Applying ordinary principles, material properly covered by without prejudice privilege cannot be referred to at trial without both parties’ consent. The claimant had not consented to a waiver. The issue was material because the finding that he had unreasonably refused re-employment, and the resulting limitation of loss to 1 July 2010, depended on whether an open offer had been made.

4. The parties agreed that one day’s holiday pay was due and that the claimant was entitled to two weeks’ pay under section 93 of the Employment Rights Act 1996. Recovery of notice-period loss could not duplicate compensation already awarded for unfair dismissal.

5. The reference below to section 122(1) of the Act was misplaced. There was no offer of reinstatement affecting the basic award. Under section 123, the issue was instead whether the claimant unreasonably refused an open offer of re-employment, amounting to a failure to mitigate loss, applying Wilding v British Telecommunications PLC [2002] ICR 1079.

6. The unfair-dismissal remedy issue and the Working Time Regulations complaints were remitted to a fresh Employment Tribunal for rehearing. A pre-hearing review was directed to determine the without prejudice and limitation issues.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the unfair-dismissal remedy and Working Time Regulations issues to a fresh Employment Tribunal.
• Employment Tribunal: Following the respondent’s concession of unfair dismissal, awarded a basic award of £1,140 and compensatory award of £8,911, but did not determine the remaining claims.