Holmes v Qinetiq Ltd

The ACAS Code of Practice on Disciplinary and Grievance Procedures applies to disciplinary situations involving culpable conduct or performance. It does not ordinarily apply to an ill-health capability dismissal where no culpability or disciplinary element is alleged. An uplift under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 is therefore unavailable. Compensation for future loss is a predictive and inherently speculative assessment. Tribunals may make a broad-brush best estimate based on the available evidence and practical experience. Career-long loss is exceptional. A claimed head of loss must be sufficiently raised and particularised before the tribunal.

The Claimant, a disabled security guard, was dismissed on ill-health capability grounds after a long period of absence. The Respondent conceded that the dismissal was unfair. The Employment Tribunal awarded compensation for unfair dismissal and unlawful discrimination but refused an uplift under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992. It assessed full and partial future loss up to 6 September 2018, thereafter awarding pension and share-scheme loss only, and did not include future travel expenses.

The Claimant appealed against the refusal of the uplift, the assessment that equivalent employment would be obtained by 6 September 2018, and the omission of travel costs.

1. Appeal dismissed. The Employment Tribunal was entitled to refuse an uplift under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992. The ACAS Code applies to disciplinary and grievance situations. A disciplinary situation ordinarily involves conduct or performance requiring correction or punishment, and therefore some form of culpability. The Code does not extend generally to capability dismissals.
2. A capability dismissal arising from genuine ill health or sickness absence, without more, is not ordinarily a disciplinary situation. The position may differ where the ill health gives rise to an allegation of culpable conduct, such as failure to comply with sickness procedures or alleged malingering. In this case no culpable conduct or performance was alleged. No disciplinary procedure was invoked, so the Code did not apply and no uplift was available.
3. The assessment of future loss under section 123 of the Employment Rights Act 1996 is predictive and inherently speculative. Tribunals may consider all relevant evidence, including practical experience and local knowledge, and make a broad-brush best estimate despite uncertainty. The Employment Appeal Tribunal should tread warily and interfere only where the high threshold for perversity is met.
4. Career-long compensation is rare. The usual approach is to assess loss until the tribunal is satisfied, allowing for life’s uncertainties, that equivalent employment is likely to be obtained. The Tribunal’s prediction that equivalent employment would be obtained by 6 September 2018 was sustainable and was not arguably perverse.
5. Travel expenses were not sufficiently raised or particularised. Passing references to travel as a reason why particular jobs were unsuitable did not put a quantified future travel claim before the Tribunal. Their omission was not an error of law.

• Employment Tribunal: awarded compensation for unfair dismissal and unlawful discrimination, refused an uplift under section 207A(2) of the Trade Union and Labour Relations (Consolidation) Act 1992, assessed future loss on a staged basis, and did not award future travel expenses.
• Employment Appeal Tribunal: dismissed the appeal.