O DAFIAGHOR-OLOMU v COMMUNITY INTEGRATED CARE

Under section 124(5) of the Employment Rights Act 1996, payments already made in respect of an unfair-dismissal complaint must be deducted from the tribunal’s total compensatory assessment before the statutory cap is applied. The employer may therefore receive no practical credit for an earlier payment.

A reconsideration application based on later-advertised vacancies has no reasonable prospect of changing a refusal of re-engagement where the original decision turned on the employee’s unchanged and unrealistic view of suitable work. Finality remains material. The tribunal may revisit compensation on a remittal concerning re-engagement if it again refuses re-engagement, because the statutory scheme requires it then to consider compensation.

The appellant had been found unfairly dismissed. At the first remedies hearing, the Employment Tribunal awarded compensation but refused re-engagement. A successful appeal resulted in a remittal for a second remedies hearing.

On 28 August 2018 the Tribunal again refused re-engagement and increased its assessment of total compensation. It declined to reconsider that decision on 18 September 2018 after the appellant relied on later-advertised vacancies. The appellant challenged the compensation calculation, the refusal of re-engagement and the reconsideration decision. The respondent cross-appealed, contending that the remittal did not permit a further compensation award.

The central issues were the operation of the statutory cap, whether later vacancies justified reconsideration, and whether compensation could be reconsidered after a renewed refusal of re-engagement.

1. Appeal allowed only as to compensation. The Employment Tribunal’s compensation order was varied. The appellant was entitled to £74,200. The respondent’s cross-appeal was dismissed, and the appellant’s challenges to the refusal of re-engagement and reconsideration were dismissed.

2. Under section 124(5) of the Employment Rights Act 1996, the Tribunal must first determine the compensatory sum which it would award apart from the cap, after deducting payments already made in respect of the complaint and any reductions required by law. It must then apply the statutory cap to that reduced amount. The language of section 124(5)(a) and (b), read with the use of “take account” in section 115(3), required a reduction. This construction applied even though the respondent’s earlier compliance with the first award produced no practical reduction of its ultimate liability.

3. The Employment Judge was entitled to refuse reconsideration under paragraph 72 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013/1237. The fresh vacancies did not address the decisive obstacle: the appellant’s unwillingness to accept roles which the Tribunal regarded as appropriate to her qualifications and experience. A further hearing could not alter the result unless she changed her position, and reconsideration was not a means by which a party could change a position already determined.

4. Finality of litigation was relevant. Although the appellant’s successful earlier appeal and second remedies hearing could not properly count against her, the Tribunal could consider the elapsed time and the risk of repeated reconsideration applications whenever a large employer advertised further vacancies. The refusal of re-engagement and reconsideration involved discretionary judgments. No manifest error justified appellate interference.

5. On again refusing re-engagement, the Tribunal was required by section 112(3) and (4) to consider compensation. The remittal did not prohibit that exercise, and the Tribunal could make a further compensation order in light of the evidence at the second remedies hearing.

• Employment Appeal Tribunal: This appeal varied the Employment Tribunal’s compensation order, dismissed the challenge to its refusal of re-engagement and reconsideration decision, and dismissed the respondent’s cross-appeal.
• Employment Tribunal: On 28 August 2018 it awarded compensation and refused re-engagement at the second remedies hearing. On 18 September 2018 it refused reconsideration. The second remedies hearing followed an earlier successful appeal by the appellant from the first remedies hearing.