Cartwright v Kings College London

When assessing compensation for a procedurally unfair dismissal, an employment tribunal must make a just and equitable assessment of loss under Employment Rights Act 1996, section 123(1). It may conclude that a fair procedure would have resulted in dismissal at a later date and award loss only for that additional period.

There is no rule that a tribunal must assume that every procedural defect could be remedied only after the actual dismissal date. It must decide, on the facts, whether the missing procedure could reasonably have occurred before dismissal. The tribunal may rely on earlier, undisturbed findings when assessing that hypothetical outcome.

The claimant had been dismissed for redundancy. The original Employment Tribunal found the dismissal substantively fair, including under section 98(4) of the Employment Rights Act 1996. The Court of Appeal subsequently held that the employer had not complied with Step 1 of the statutory dismissal procedure and therefore substituted a finding of unfair dismissal.

On remission, a freshly constituted tribunal refused reinstatement and re-engagement, which were not challenged. It awarded compensation equivalent to two weeks' pay, together with a 20 per cent statutory uplift and a conventional sum for loss of employment rights. The claimant appealed, principally contending that the tribunal had to assume compliance with the statutory procedure only from the dismissal date. The respondent's cross-appeal was conditional upon the claimant succeeding.

1. Appeal dismissed. The Employment Tribunal made no error of law in awarding loss for only two additional weeks. The respondent's conditional cross-appeal was consequently also dismissed.
2. Section 123(1) of the Employment Rights Act 1996 requires a practical and just assessment of loss caused by dismissal. Applying the principles in Polkey v A E Dayton Services Ltd [1988] ICR 142 and Software 2000 Ltd v Andrews [2007] IRLR 568, a tribunal may find that a procedurally fair dismissal would nevertheless have occurred, but later. It may then award loss for that limited period.
3. Mining Supplies (Longwall) Ltd v Baker [1988] ICR 676 established that the necessary period of consultation need not be added automatically after the dismissal date. The decisive question is whether the omitted procedure could reasonably and should have been undertaken before dismissal. Where there was time before dismissal and the defect was technical and remediable, no additional period is required as a matter of law.
4. The tribunal was entitled to find that the failure to comply with Step 1 occurred in summer 2007. The claimant already knew that his employment was at risk, knew the redundancy grounds, had opportunities to make representations, and had discussed redeployment and severance. It could therefore use the earlier tribunal's undisturbed findings as a sound evidential basis for concluding that compliance would have delayed dismissal by only two weeks.
5. The statutory uplift was correctly applied to the compensatory award. As no reduction under section 123(7) was made, section 124A(1) did not affect the calculation.

• Employment Appeal Tribunal: The claimant's appeal from the remedies judgment was dismissed. The respondent's conditional cross-appeal was also dismissed.
• Court of Appeal: Allowed the claimant's appeal, held the dismissal unfair because Step 1 of the statutory procedure had not been complied with, and remitted remedy: [2010] EWCA Civ 1146.
• Employment Appeal Tribunal: Dismissed the claimant's earlier appeal on 24 June 2009.
• Employment Tribunal: The London South tribunal dismissed the unfair-dismissal claim on 30 December 2008. Following remittal, the Bristol tribunal awarded compensation on 27 May 2011.