Unilever De Centroamerica SA de CV v A Pirie

Where liability and remedy are separated, a tribunal’s liability findings preclude reconsideration only of facts it actually determined. The meaning of its decision is established by a fair, objective reading of the decision as a whole, not by either party’s subjective understanding.

A finding that an employer acted unfairly by failing to discuss a potential alternative role does not determine whether that role would later have materialised. At the remedy stage, the employer may raise that unresolved issue as a Polkey contention, provided the employee has fair notice and opportunity to address it. The tribunal must determine the issue from the relevant evidence when assessing compensation.

The claimant, a Costa Rican national employed within the Unilever group on a fixed-term international assignment in the United Kingdom, was dismissed when that assignment ended in August 2016.

The Employment Tribunal held the dismissal unfair under section 98(4) of the Employment Rights Act 1996. It found that potential finance roles, referred to as BFS roles, had been discussed as Polish roles in March 2016, but that the claimant should also have been told that they could potentially be performed in the United Kingdom, subject to local terms and a visa.

At remedy, the tribunal assessed compensation on the basis that the claimant would have accepted a UK BFS role and had a 50% chance of obtaining the necessary visa. It held that the respondent could not contend that no such role would in fact have been available. The respondent appealed the compensatory award.

1. Appeal allowed. The compensatory award was remitted because the tribunal wrongly treated the liability judgment as having determined that a UK BFS vacancy would in fact have been available to the claimant.

2. The meaning of a tribunal decision is determined by a fair and objective reading of its ordinary language in the context of the decision as a whole. It does not depend on either party’s subjective reading. The EAT could not revisit findings actually made in the unappealed liability decision, nor treat the liability and remedy decisions as a single composite decision.

3. On its proper reading, the liability decision found only that, in March 2016, there were potential BFS roles which might be performed in Poland or the United Kingdom. They were not guaranteed. The unfairness finding under section 98(4) of the Employment Rights Act 1996 concerned the respondent’s failure at that time to tell the claimant about, and explore with her, the UK option and the visa position. It did not find that the potential roles subsequently materialised or that an actual UK vacancy would have been available at the relevant time.

4. The respondent could therefore raise, at remedy, the further Polkey issue whether the claimant would have been placed into such a role if she had wished to pursue it and obtained a visa. The claimant had fair notice and an opportunity to meet that contention. The respondent bore the burden of establishing its asserted contingency.

5. The tribunal should have made findings on that issue from the relevant evidence presented at the liability and remedy hearings. Its failure to do so was an error of law. Its existing findings that the claimant would have wanted a UK BFS role and that there was a 50% chance of obtaining a visa were unaffected and need not be reopened.

6. The matter was remitted to the same tribunal panel if practicable, to determine the chance that the claimant would have been placed in a UK BFS role and then reassess the compensatory award.

• Employment Appeal Tribunal: Allowed the respondent’s appeal against the compensatory award and remitted the identified Polkey issue, and consequential reassessment of compensation, to the same tribunal panel if practicable.

• Employment Tribunal: Found the claimant ordinarily unfairly dismissed under section 98(4) of the Employment Rights Act 1996. At remedy it awarded a basic award and a compensatory award, having treated a UK BFS role as available and applied a 50% visa contingency.