Symonds (trading as Symonds Solicitors) v Redmond-Ord

In a constructive unfair dismissal claim, compensation under section 123 of the Employment Rights Act 1996 may include loss after the employee should have been allowed to return to work, unless the employee acted unreasonably in failing to return.

Loss caused by antecedent breaches of contract, for which the employee had an independent contractual claim before dismissal, is not loss caused by the dismissal. A late amendment to an appeal notice may be refused where it would cause injustice. A review hearing granted to correct calculations need not reopen an already decided legal issue.

The respondent employee took agreed unpaid leave and was due to return in February 2010. The appellant employer refused to permit her return until July and failed to deal with her grievance. She resigned in April and successfully claimed constructive unfair dismissal.

The Employment Tribunal awarded compensation calculated from February 2010. On review, granted to correct calculation errors, it increased the award. The employer appealed, arguing that loss should run only from the resignation date and should end in July when work was said to become available. The central issues were the correct period of compensatory loss, permission to amend the original notice of appeal, and the scope of the review.

1. End date of loss. The Tribunal applied the correct test under section 123 of the Employment Rights Act 1996. A compensatory award may be reduced where the employee unreasonably fails to mitigate loss or where the dismissal was caused or contributed to by the employee. The Tribunal was entitled to reject the proposed July 2010 cut-off because the employer had committed serious breaches by refusing the return to work and failing to address the grievance.
2. Start date of loss. The employer’s argument based on GAB Robins (UK) Limited v Triggs was legally correct. Loss caused by wrongs inflicted before termination, for which the employee had an independent claim for breach of contract, is not loss suffered in consequence of the constructive dismissal. That distinction followed Johnson v Unisys Limited, as applied in Eastwood v Magnox Electric plc and GAB Robins (UK) Limited v Triggs.
3. Amendment. Permission to amend the notice of appeal was refused. Relevant considerations included whether the point was argued below, the lateness of the application, the employee’s entitlement on the Tribunal’s findings to compensation for the relevant period, and the risk of further litigation. Although the point was legally sound, allowing it would confer an undue benefit from delay and obstruct substantial justice.
4. Review. A review granted to correct calculation errors need not determine other aspects of the case. A Tribunal may correct an obvious error of law by review, but should not generally rehear essentially the same argument.
5. Both appeals were dismissed and permission to amend the original notice of appeal was refused.

• Employment Tribunal, Exeter: by judgment dated 13 June 2012, found constructive unfair dismissal and awarded £7,922.
• Employment Tribunal, Exeter: on review, judgment dated 31 October 2012, corrected calculation errors and increased the award to £11,143.
• Employment Appeal Tribunal: refused permission to amend the notice of appeal against the substantive judgment and dismissed both appeals.