Fotheringhame v Barclays Services Ltd

The monetary element of a re‑engagement order is conditional on re‑engagement taking place and thus is not a "relevant decision" for the purposes of the Employment Tribunals (Interest) Order 1990 Article 2(2) and Article 3. Instead, where re‑engagement does not occur section 117 of the Employment Rights Act 1996 governs the remedy and distinct awards are made. Accordingly, interest under the Interest Order does not run on a conditional award which fails to crystallise.

The appellant succeeded at first instance with an order for re‑engagement which included a formula for calculating sums payable if re‑engagement occurred. The employer did not re‑engage. The Employment Tribunal (Remedy) subsequently made an award under section 117. The sole issue before the Employment Appeal Tribunal was whether the earlier Remedy Judgment of 9 August 2018 was a "relevant decision" under the Employment Tribunals (Interest) Order 1990 so as to attract interest from the day after that decision. The ET had refused interest. The EAT considered the statutory scheme of sections 115 and 117 ERA 1996 and the Interest Order. The central issue was whether the 2018 order required immediate payment or merely specified conditional terms that only became payable if re‑engagement took place.

1. Disposition: the appeal is dismissed. The ET was correct to find that the 9 August 2018 re‑engagement order was not a "relevant decision" for the purposes of the Employment Tribunals (Interest) Order 1990 and therefore Article 3 interest did not run from the calculation day after that decision (see paras [12]–[16]; [13]).

2. Reasoning: a re‑engagement order under Employment Rights Act 1996 s115(2) specifies the terms on which re‑engagement "is to take place" and is prospective in nature. The monetary element of such an order is conditional on re‑engagement occurring and does not, at the date of the order, operate as an immediately payable sum (see paras [13]–[16]).

3. Application of statutory scheme: where re‑engagement does not take place, s117(3) ERA 1996 requires the tribunal to make distinct awards for unfair dismissal and an additional award. Those statutory provisions provide the remedy and prevent an employer from profiting by ignoring a re‑engagement order (see paras [8], [11]–[13], [19]).

4. Consequent legal point: interest under the Interest Order is not payable on a conditional award that fails to crystallise. It would be illogical for interest to run on sums that were never required to be paid under the original prospective order (see paras [12], [16], [19]).

5. Obiter on Article 2(2)(b): the tribunal observed that an amount may be "ascertainable by reference to the terms of the order" even if the calculation requires reference to non‑discretionary contractual pay and benefits. That point was unnecessary to the decision and treated as moot (see paras [15]–[17]).

6. Order: appeal dismissed. No interest was payable on the 9 August 2018 Remedy Judgment; the January 2019 award under s117 was the operative determination.

• Employment Appeal Tribunal: Appeal from an Employment Tribunal Remedy Judgment; appeal dismissed by HHJ Martyn Barklem (sitting alone) (Judgment handed down 01 May 2020).
• Employment Tribunal (Remedy): Remedy Judgment dated 9 August 2018 (re‑engagement order) and subsequent Remedy Judgment dated 24 January 2019 (award under s117) (see paras [3]–[5]; [4]).