Carr Gomm Scotland Ltd v Sneddon

Where an Employment Tribunal is remitted to reassess compensation on the facts already found, it must not make fresh findings that contradict its original factual conclusions. It must calculate compensation by reference to the established cause of loss.

Loss caused by information in an enhanced disclosure record, for which the employer was not responsible, cannot be treated as loss attributable to the employer’s dismissal. The Tribunal must reconsider the compensatory award consistently with those limits.

The Claimant, a care worker, succeeded in his unfair-dismissal claim. The original Employment Tribunal reduced compensation by 35% for contributory conduct and awarded loss extending beyond dismissal because the Claimant could not obtain further care work.

Following appeals, the Court of Session restored the finding of unfair dismissal and remitted the quantum issue to the Employment Appeal Tribunal. The EAT then remitted compensation to the same Tribunal, directing it to decide the matter afresh but on the facts already found.

On remittal, the Tribunal made a lower award but found that the dismissal for gross misconduct, rather than the enhanced-disclosure entry, had prevented further care-sector employment. The employer appealed, contending that this was an impermissible new and inconsistent finding.

1. Appeal allowed. The Employment Tribunal had not complied with the remittal direction to reconsider compensation on the facts already found.

2. The original judgment had, at least tolerably clearly, found that the enhanced-disclosure information was the reason the Claimant did not obtain employment with First Home Care and could not obtain care-sector work. In the second judgment, the Tribunal instead treated dismissal for gross misconduct as the operative cause. That was a different finding of fact.

3. A Tribunal must make findings sufficient to explain its compensatory award. It may not, when expressly confined to existing findings, reopen causation or make fresh findings inconsistent with its earlier decision. Arguments about multiple causes of loss, or the absence of evidence from a prospective employer, should have been raised at the original remedy hearing.

4. The enhanced-disclosure document was not, in this context, something for which the employer was responsible. Compensation must therefore be reconsidered by reference to the original findings that the document caused the Claimant’s inability to obtain work.

5. The case was remitted to the same Employment Tribunal to reassess the remedy in accordance with its original findings, particularly those at paragraphs 81 and 183 of its first judgment.

• Employment Appeal Tribunal: Allowed the employer’s earlier appeal against the original unfair-dismissal decision.

• Court of Session: Allowed the Claimant’s appeal, restored the Employment Tribunal’s finding of unfair dismissal, and returned the quantum issue to the Employment Appeal Tribunal.

• Employment Appeal Tribunal: On 23 April 2012, remitted compensation to the same Employment Tribunal to be reconsidered on the facts already found.

• Employment Appeal Tribunal: In the present appeal, allowed the employer’s appeal against the second remedy judgment and remitted the matter again to the same Tribunal.