Dobbie v Felton (t/a Feltons Solicitors)

Where a claim is successful following remission, the Employment Tribunal must determine remedy on the findings it makes on liability and the parties’ submissions. This includes determining anew whether the relevant consultancy agreement would have ended at the same time even without any protected disclosures found to have been made.

This supplementary judgment followed the conclusion of an appeal. The Employment Appeal Tribunal had invited submissions on whether, if the claimant succeeded on remission in establishing protected disclosures and causation, the Employment Tribunal could determine anew the counterfactual issue of whether the consultancy agreement would have ended at the same time without those disclosures.

Both parties agreed that this would be for the Employment Tribunal as part of the ordinary assessment of remedy. The respondent sought general compensation guidance, but the Employment Appeal Tribunal declined to provide it.

1. Issue determined. The parties agreed that, if the claimant succeeds on remission, the Employment Tribunal must determine anew whether the consultancy agreement would have been terminated at the same time absent any protected disclosures found to have been made.
2. That question forms part of the usual process of determining remedy. It must be decided by the Employment Tribunal on its findings of fact on liability and the parties’ submissions.
3. No further guidance was necessary because the parties were not in dispute. The Employment Appeal Tribunal also declined the respondent’s request for general guidance on compensation, leaving remedy to the Employment Tribunal.

• Employment Appeal Tribunal: In this supplementary judgment, the tribunal confirmed the parties’ agreement that the counterfactual termination issue is to be determined anew by the Employment Tribunal if the claimant succeeds on remission.