The Royal Bank Of Scotland v Mr P O'Doherty

An Employment Tribunal should not reopen, at a remedy hearing, a concluded and unappealed finding that an employee did not contribute to dismissal. Fresh evidence cannot be used at that stage to revisit liability findings.

When assessing loss of earnings, the Tribunal must address a material counterfactual affecting the weekly loss figure. Where pre-existing illness may have led to long-term sickness absence and reduced contractual sick pay, an award based throughout on full salary is erroneous unless that issue is considered. A failure to issue a recoupment notice may be corrected on remission.

The claimant, a branch manager, was dismissed following disciplinary proceedings while absent with depression. The Employment Tribunal upheld claims for unfair dismissal, breach of contract and failure to make reasonable adjustments. It found that he had not contributed to his dismissal and made no Polkey deduction.

An earlier appeal by the bank was dismissed. At the remedy hearing, the Tribunal declined to reconsider contributory conduct, awarded compensation including full earnings loss, imposed a 25% uplift for non-compliance with the ACAS Code, and omitted a recoupment notice.

The bank appealed the remedy judgment. The central issues were whether contributory conduct could be reopened, whether the uplift was adequately reasoned, and whether the loss calculation had to account for the claimant's pre-existing sickness absence and possible entitlement to half pay.

1. Appeal allowed in part. Grounds challenging the refusal to reopen contributory conduct and the 25% ACAS uplift were dismissed. The appeal against the earnings-loss calculation and the omission of a recoupment notice was allowed.

2. The finding at the liability hearing that the claimant had not contributed to his dismissal was clear, had not been challenged in the first appeal, and could not be reopened at remedy stage. The employer's reconsideration application was also made 18 months out of time. Obiter observations in the earlier appeal concerning the separate Polkey issue did not permit reconsideration of contribution. Nor could fresh evidence from a witness who had given evidence at the liability hearing be used to revisit those findings.

3. The maximum 25% uplift for non-compliance with the ACAS Code was permissible. Read with the liability findings about procedural defects in the disciplinary process, the remedy reasons were Meek-compliant.

4. The Tribunal erred in awarding full salary throughout more than four years of past earnings loss without addressing the effect of the claimant's illness before the disciplinary process. It had to determine how long he would probably have remained absent through that earlier illness. If he would have entered the employer's long-term sickness arrangement, payment would have reduced to 50% of salary and that reduced sum would be the relevant weekly loss figure.

5. The case was remitted to the same Tribunal, on submissions only and without further evidence, to determine that narrow issue and issue the necessary recoupment notice.

• Employment Appeal Tribunal: This appeal allowed Grounds 4 and 6, dismissed Grounds 1–3 and 5, and remitted the calculation of weekly loss and recoupment notice to the same Tribunal.
• Employment Appeal Tribunal: In the earlier appeal, EAT/0489/12/RN, the employer's challenges to the findings of predetermination and failure to make reasonable adjustments were dismissed.
• Employment Tribunal: The liability judgment of 28 June 2012 upheld unfair dismissal, breach of contract and reasonable-adjustment claims, and found no contributory conduct.
• Employment Tribunal: The remedy judgment of 29 April 2014 awarded compensation of £126,348.29, including a 25% ACAS Code uplift.