Beckford v Southwark London Borough Council

When considering suitable alternative employment or re-engagement for a disabled employee dismissed for incapability, a tribunal should generally consider whether reasonable adjustments could make an alternative post suitable. However, failure to address that question is not an error of law where no focused argument or particular post was identified and the tribunal sufficiently explained its factual conclusion.

Compensation for discrimination in the Employment Tribunal must be broadly comparable with damages awarded by the county court or sheriff. The 10% uplift for general damages established in Simmons v Castle applies to injury-to-feelings awards in discrimination claims.

The Employment Tribunal upheld claims of unfair dismissal, failure to make reasonable adjustments and victimisation. It awarded compensation, including £4,000 for injury to feelings increased by 10 per cent. It also applied a 75 per cent reduction to compensatory losses to reflect the likelihood that suitable alternative employment would not have been found.

The claimant appealed against the treatment of re-engagement and reasonable adjustments. The respondent cross-appealed against the 10 per cent uplift. The Employment Appeal Tribunal considered whether the tribunal had adequately addressed reasonable adjustments and whether Simmons v Castle applied to discrimination compensation.

1. Appeal dismissed. In a disability-related capability dismissal, suitable alternative employment should generally be assessed by considering whether reasonable adjustments could make an alternative post suitable. This principle is relevant to practicability when re-engagement is considered.
2. The tribunal had examined the available vacancies and the claimant’s broader suitability for other posts. The identified vacancies were unsuitable for reasons unrelated to disability. No particular alternative post or adjustment had been advanced before the tribunal. It was therefore sufficient for the tribunal to conclude that re-engagement was impracticable. A tribunal does not err in law by failing to address an argument which was not raised. The conclusion was a finding of fact and was not perverse.
3. Cross-appeal dismissed. Sections 124(6) and 119(4) of the Equality Act 2010 require discrimination compensation in the tribunal to correspond, in broad terms, with damages available in the county court or sheriff court. That comparability does not permit tribunal awards to be consistently 10 per cent higher or lower.
4. The general statement in Simmons v Castle that general damages for torts causing suffering, inconvenience or distress should be increased by 10 per cent was deliberately expressed across the board. Discrimination damages are a form of statutory tort, and the uplift applies to injury-to-feelings awards. The different costs regimes did not justify a different level of compensation.
5. The tribunal’s decision remained open to review within 21 days of the Court of Appeal’s judgment in the forthcoming De Souza or Sash Window Workshop appeal, if applicable.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and the respondent’s cross-appeal. The decision was subject to a possible review following the relevant Court of Appeal judgment.
• Employment Tribunal: upheld claims of unfair dismissal, failure to make reasonable adjustments and victimisation, and made the remedies award challenged on appeal.