Durham County Council v Hall

An employment tribunal may assess compensation for loss flowing from an established protected-disclosure detriment by considering what would probably have occurred had the detriment not happened. This does not amount to impermissibly substituting its view for an employer’s selection process where the tribunal does not challenge the original scoring, but determines the likely score on the counterfactual facts.

A review in the interests of justice may be used to quantify future loss left unresolved because the employer invited recommendations and then failed to comply. A later dismissal claim does not prevent the tribunal from deciding causation and loss in the earlier claim, provided it does not decide the fairness of that dismissal and avoids double recovery.

The claimant teacher had previously succeeded in a protected-disclosure detriment claim. At the remedies hearing, the Employment Tribunal declined to quantify future loss because the respondents invited recommendations and indicated that they would comply. The tribunal recommended restoration of the claimant’s literacy-leadership role, associated payments and support for her NPQH application.

The respondents did not implement the material recommendation. Following a redundancy selection exercise, the claimant was dismissed and brought a separate claim concerning that dismissal. On review of the first claim, the tribunal found that restoration of the leadership role would have given her a sufficient score to avoid selection for redundancy. It deferred quantification of loss and made a costs order. The respondents appealed on grounds concerning causation, review procedure, evidence, case management, future loss and costs.

1. Appeal dismissed. The Employment Tribunal made no error of law in reviewing the outstanding issue of future loss arising from the established detriments.

2. The tribunal was entitled to determine the counterfactual question whether the claimant would have been selected for redundancy if the respondents had restored her leadership role and provided the support contemplated by the recommendation. It did not re-score the actual redundancy process, question the selection criteria, or substitute its own assessment for that of the employer. It assessed the likely result of that process on different facts, using evidence including the scores of teachers who held leadership roles.

3. The tribunal’s reasons adequately identified the competing cases, its use of the scoring material, and why it concluded that the claimant would not have been selected. They met the requirements explained in Meek.

4. The existence of a second claim arising from the dismissal did not make the review an abuse of process. The review concerned causation and compensation for the earlier unlawful detriments. It did not determine whether the redundancy dismissal was fair or unfair. Refusing to assess that loss in the first claim could have left the claimant without compensation if the separate dismissal claim failed.

5. In the exceptional history of this case, a review was properly available in the interests of justice under rule 34(3)(e) of Schedule I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The recommendations had been made at the respondents’ invitation in place of an immediate quantification of future loss, and their non-compliance made that quantification necessary.

6. The tribunal was entitled to reject a Polkey-type contention that the claimant would in any event have been dismissed for loss of trust and confidence. The respondents called no supporting oral evidence and had not shown a real prospect of such a dismissal. It was also entitled to order costs for unreasonable conduct after the respondents failed to comply with the recommendation they had invited.

• Employment Appeal Tribunal: dismissed the respondents’ appeal from the Employment Tribunal’s review decision.
• Employment Tribunal, Newcastle-upon-Tyne: on review, held that the claimant’s redundancy selection resulted from the earlier detriments and the failure to implement the recommendation; quantification of future loss and costs remained outstanding.
• Employment Tribunal, Newcastle-upon-Tyne: had previously upheld protected-disclosure detriment complaints and made remedies recommendations rather than immediately quantifying future loss.