Unilever De Centroamerica SA de CV v A Pirie

The Employment Appeal Tribunal allowed the employer's appeal against part of the employment tribunal's remedy decision and remitted a factual issue to the tribunal. The central legal issue was whether the employment tribunal had, at the liability stage, made a finding that there was an actual UK-based BFS role available for the claimant such that the respondent was precluded from raising contrary evidence at the remedy stage. The EAT held that the liability decision made findings about the position as it stood in March 2016 (that potential BFS roles existed and could, in principle, be done in the UK) but did not find that those potential roles had later materialised as actual vacancies available to the claimant. Accordingly the respondent was not precluded from raising at remedy stage evidence (a Polkey point) as to whether, in the event, the claimant would in fact have been placed into such a role.

The tribunal erred in the remedy decision by failing to make fresh findings about that issue on the totality of the evidence from both the liability and remedy hearings. The EAT remitted the matter to the tribunal to determine, if possible by the same panel, the percentage chance that the claimant would have been placed into a UK BFS role had she been offered it and indicated willingness to accept it, and to recalculate the compensatory award accordingly. The decision refers expressly to section 98(1)(b) and section 98(4) Employment Rights Act 1996 in relation to the reason for dismissal and the fairness assessment.

Background and parties: The claimant worked for the Unilever group on an international assignment (IA) fixed-term contract expiring 31 August 2016. She alleged detriments and unfair dismissal for having made protected disclosures. The employment tribunal (Croydon) found some protected disclosures and that the dismissal was ordinarily unfair. Following remedy hearings the tribunal assessed a compensatory award on the basis that the claimant would have accepted a UK-based BFS role and that there was a 50% chance of obtaining the requisite visa.

Nature of proceedings and relief sought: This was an appeal by the respondent against aspects of the remedy decision, in particular the tribunal's approach to alternative employment and the compensatory award. The respondent contended it should have been permitted at remedy stage to advance and prove an argument that, in the event, no suitable BFS vacancy would have been available for the claimant.

Issues framed by the EAT:

• Whether the liability decision had already determined that a UK BFS role was actually available to the claimant such that the respondent could not raise contrary evidence at remedy stage;
• whether the tribunal erred by failing to consider and make findings on the evidence presented at the remedy hearing about whether a role in fact existed or would have materialised;
• Polkey issues relevant to remedy: whether the claimant would have accepted a UK BFS role and the chances of obtaining the required visa.

Court's reasoning: The EAT undertook an objective reading of the liability judgment and concluded it made findings about the state of knowledge and decisions in March 2016 – namely that potential BFS roles had been identified and could, in principle, be done in the UK – but it did not make any finding that those roles had subsequently materialised as actual vacancies. That left open matters properly addressed at remedy stage. The respondent was therefore entitled to raise at remedy stage an evidential contention (a Polkey point) that, even if offered and willing, the claimant would not have been put into such a post. The tribunal should have made fresh findings on that issue based on all the evidence before it from both hearings. Because it failed to do so, the EAT allowed the appeal and remitted the specific factual questions to the tribunal to determine, including reassessment of the compensatory award.

Disposition: Appeal allowed; matter remitted to the tribunal to determine (a) the percentage chance the claimant would have been placed into a UK BFS post had she indicated willingness to pursue it and a visa been obtained, and (b) the compensatory award in light of that conclusion.

Appeal allowed. The EAT held that the liability decision had made findings only about the position as it stood in March 2016 (that potential BFS roles existed and could in principle be done in the UK) and had not found that those potential roles later materialised as actual vacancies. The respondent was therefore not precluded from raising at the remedy stage evidence that, in the event, the claimant would not have been placed into a BFS role. The tribunal erred by failing to make findings on that issue at remedy and the matter was remitted to the tribunal to determine the probability the claimant would have been placed into such a post and to recalculate the compensatory award.

Appeal to the Employment Appeal Tribunal from Employment Tribunal decisions (liability decision after a 2018 merits hearing and subsequent remedy decisions following remedy hearings in 2019 and 2020); determined by the EAT in Unilever De Centroamerica SA de CV v A Pirie [2022] EAT 170.