Stroud Rugby Football Club v Monkman

Where an employee is unfairly dismissed for redundancy following inadequate consultation, compensation under section 123 of the Employment Rights Act 1996 may include loss flowing from a lost opportunity to discuss alternative paid work. This may be so even if a redundancy dismissal would ultimately have been inevitable.

The causation inquiry is whether the loss resulted from the employer's action. Whether consultation would probably have produced an alternative arrangement is a factual question. Future loss may be assessed on a balance of probabilities where the evidential matrix permits it. A percentage assessment of a lost chance is not mandatory in every case.

The Club dismissed the Claimant, who had worked behind its bar for many years, by telephone in June 2012. The Employment Tribunal at Bristol held that the reason was redundancy but that the procedure was unfair. It found that, after proper consultation, the Claimant would probably have accepted casual job-share work with another worker.

The Tribunal awarded compensation that included future loss for the lost opportunity to continue earning in that capacity. The Club appealed the compensatory award. It contended that redundancy would in any event have followed after two weeks' consultation, so that later loss was not caused by the unfair dismissal. Alternatively, it argued that future loss had to be assessed as a percentage chance rather than on a balance of probabilities.

1. Appeal dismissed. The Employment Judge made no error of law in awarding compensation for future loss.

2. Under section 123(1) of the Employment Rights Act 1996, the question is whether the loss was sustained in consequence of dismissal insofar as it was attributable to the employer's action. The inevitability of a redundancy dismissal after proper consultation does not necessarily mark the end of compensable loss.

   If inadequate consultation excluded an appropriate arrangement which would have allowed the employee to retain some paid work, the resulting loss may flow from the dismissal. The Employment Judge was therefore entitled to treat the lost opportunity to discuss casual job-share work as an ongoing source of loss.

3. Whether it is unfair to dismiss without considering alternative or subordinate work is a question of fact, not a rigid rule. The fact that the Claimant was the only employee in the selection pool meant that consultation on selection was unnecessary. It did not make consultation about possible future paid work irrelevant.

4. Assessment of future loss is necessarily imprecise. In some cases a tribunal should assess the percentage chance of a future event. In others it may make a rough assessment on a balance of probabilities. On the evidence concerning the Claimant's attachment to the Club, the existing casual work and the likely willingness of both workers to share it, the finding that an accommodation would probably have been reached was open to the Employment Judge.

5. The Judge's reference to a job share being sensible was read in its factual context. It expressed the likely result of consultation, rather than the Judge imposing his own preferred employment solution. No remission arose.

• Employment Appeal Tribunal: dismissed the Club's appeal against the compensatory award: [2013] UKEAT 0143_13_2110.
• Employment Tribunal, Bristol: Employment Judge Housego held that the Claimant had been unfairly dismissed by reason of redundancy and awarded compensation, including future loss. The hearing took place on 19 November 2012 and written reasons were sent on 12 December 2012.