Coker v Wandsworth Borough Council

Where an Employment Tribunal has found that employment would in any event have ended shortly after an unfair constructive dismissal, it may assess pension loss by the simplified approach and limit compensation to the employer contributions lost during that period. The substantial-loss approach does not apply where there is no substantive continuing pension loss.

An appellate court will not interfere with permissible factual findings merely because a party advances a different factual case. A Tribunal may also refuse an uplift under Trade Union and Labour Relations (Consolidation) Act 1992 section 207A where it was entitled to find no unreasonable failure to comply with the ACAS Code or, alternatively, where an uplift would not be just and equitable.

The Employment Tribunal held that the claimant had been unfairly constructively dismissed because of delays in handling her grievance. It dismissed her claims for race discrimination, racial harassment and victimisation. At the remedies hearing, it limited compensation to sick pay and calculated pension loss on a simplified basis. It made no ACAS uplift.

The claimant appealed the remedies decision. The respondent conceded that pension contributions should reflect full pay and the corrected performance-related pay. The remaining issues concerned the proper approach to pension loss and the refusal of an uplift for alleged non-compliance with the ACAS Code.

1. Appeal allowed in part. Ground 1 was dismissed following its withdrawal. The appeal succeeded only on the conceded part of Ground 2: pension contributions had to be calculated by reference to full pay and the corrected performance-related pay. The case was remitted to the same Employment Tribunal to quantify that award.

2. The Tribunal was entitled to use the simplified method in the pension-loss guidelines. Its factual finding was that the claimant would, in any event, have resigned when sick-pay entitlement ended on 4 December 2011. On that finding, there was no substantive or career-long loss of pension rights. The Tribunal could therefore limit the award to the employer contributions lost during the short relevant period and make no award for enhancement of accrued rights, loss after that date, or future pension loss. The appeal disclosed no perversity or error of law in those findings.

3. The Tribunal was entitled to find that the respondent had not breached the ACAS Code. It took account of meetings that had occurred, delays attributable to the claimant and the evidential difficulties at the remedies hearing. Its alternative conclusion was also open to it: even if there had been a failure to comply with the Code, an increase under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 would not have been just and equitable in all the circumstances. Read with the liability reasons, the remedies reasons adequately explained that conclusion. There was no perversity and no failure to give Meek-compliant reasons.

• Employment Appeal Tribunal: Appeal allowed in part. The pension-contribution issue was remitted to the same Employment Tribunal.
• Employment Tribunal, London (South): At the remedies hearing on 11 October 2012, compensation for unfair constructive dismissal was limited largely to sick pay; pension loss was assessed using the simplified method and no ACAS uplift was awarded.
• Employment Tribunal, London (South): In liability reasons sent on 21 June 2012, the Tribunal found unfair constructive dismissal but dismissed the discrimination, harassment and victimisation claims.