Ndebele v Kasterlee UK Ltd & Ors

In assessing compensation for unlawful discrimination, an Employment Tribunal must determine whether the claimant’s alleged loss flowed from the discriminatory act. It must consider evidence that a claimant did not seek or return to work because the employer had refused reasonable adjustments, rather than treating the absence of an availability notification as determinative. The compensatory principle is to place the victim, so far as money can do so, in the position they would have occupied absent the wrong: Meikle v Nottingham CC [2004] EWCA Civ 859 applied.

The claimant, a disabled chef de partie, succeeded before the Employment Tribunal in claims arising from the respondent employer’s failure to make reasonable adjustments, indirect discrimination, harassment and victimisation. At the remedy hearing, the Tribunal declined to award loss after 2 January 2014 because she had not notified the employer that she was available for work.

She appealed on the basis that the Tribunal had failed to consider whether she did not put herself forward for work because the employer had refused adjustments and returning to heavy lifting risked further injury. The central issue was whether that causal question had been addressed when assessing compensation.

1. Appeal allowed. The Employment Tribunal’s reasoning was inadequate. It treated the claimant’s failure to notify availability for work as conclusive, without considering the material causal question.

2. The Tribunal had to determine whether the claimant did not seek work after 2 January 2014 because the employer had already refused reasonable adjustments and she reasonably feared further back injury if she returned to a role requiring heavy lifting without them. That question was necessary to assess whether her loss consequentially flowed from the unlawful failure to make adjustments.

3. Applying the compensatory principle in Meikle v Nottingham CC [2004] EWCA Civ 859, compensation should place the victim, so far as money can do so, in the position she would have been in absent the wrong. The claimant’s witness evidence directly addressed the omitted question, and there was no contradictory material before the Appeal Tribunal.

4. The Appeal Tribunal found that the claimant had not returned to work on or after 2 January 2014 because her employer had refused reasonable adjustments for her disability. That was a consequential loss position arising from an unlawful act and required consideration in compensation.

5. The issue of compensation was remitted to a fresh Employment Tribunal for further evidence and a fresh remedy determination.

• Employment Appeal Tribunal: allowed the claimant’s appeal against the remedy decision and remitted compensation to a fresh Tribunal.
• Employment Tribunal, London (South): following a remedy hearing on 16 March 2015, with judgment and order entered on 20 March 2015, held that no loss after 2 January 2014 had been proved because the claimant had not requested work after that date.