Astha Limited & Anor v S Grewal

The Employment Appeal Tribunal considered an appeal against the Employment Tribunal's remedy decision following findings that the claimant succeeded in claims of ordinary unfair dismissal under section 94 of the Employment Rights Act 1996 and disability discrimination under section 15 of the Equality Act 2010. The appellants advanced grounds challenging (i) the refusal to make a deduction for contributory fault under the Law Reform (Contributory Negligence) Act 1945, (ii) whether the claimant's subsequent employment broke the chain of causation for loss of earnings, and (iii) the assessment of the basic award. The EAT dismissed the arguments on contributory fault and on break of causation, upholding the Tribunal's application of Chagger/Polkey principles to avoid double counting and accepting the Tribunal's reasoning on mitigation and residual loss. The EAT allowed the appeal in part by correcting the Tribunal's treatment of individual liability: awards that can be made only against an employer (the basic award under the ERA and the s.38 Employment Act 2002 award) could not be enforced against the second respondent personally, and the second respondent's liability was reduced accordingly.

Background and parties:

• The claimant (respondent before the EAT) brought claims that resulted in an Employment Tribunal finding (22 November 2019) that he had been unfairly dismissed under s.94 ERA and dismissed for something arising in consequence of disability under s.15 EqA. The ET made a remedy award which, on its face, treated the first and second respondents as jointly and severally liable for the compensation.
• The appellants (the company and an individual) sought to challenge the remedy decision in the Employment Appeal Tribunal. The present appeal proceeded largely in respect of the second respondent after the first respondent withdrew its appeal.

Nature of the application and issues:

• The appeal concerned the assessment of compensation and remedies. The specific issues decided by the EAT were: whether the ET should have made a deduction for contributory fault under the Law Reform (Contributory Negligence) Act 1945; whether the claimant's subsequent employment (and later loss of that employment) broke the chain of causation for earnings loss; whether further deduction should have been made to the basic award for contributory fault; and whether the ET had erred in making the second respondent personally liable for awards that, by statute, can be made only against an employer (the basic award under s.122 ERA and the s.38 Employment Act 2002 award).

Procedural posture / appellate path:

• Notice of Appeal filed 8 January 2021. Permission and case management steps followed (including consideration under Rule 3.10 EAT Rules). A cross-appeal by the claimant was sifted and rejected on 16 February 2022. By order of 2 November 2023 the company (first respondent) indicated it would not pursue its appeal, leaving the second respondent to continue her appeal.

Court's reasoning and conclusions:

• Contributory fault and double counting: the EAT agreed with the ET that a Chagger/Polkey deduction (75 per cent in this case) had been made for the risk the claimant would have been dismissed in any event, and that to re-visit the same conduct again under the 1945 Act would risk double counting. The EAT therefore dismissed the ground seeking a further deduction for contributory fault.
• Chain of causation: the EAT applied the principles in Dench v Flynn & Partners and concluded that the claimant's subsequent employment at a lower wage, followed by a later dismissal for reasons unconnected to the original dismissal, did not break the chain of causation for partial loss of earnings. The ET had correctly given credit for earnings obtained and assessed remaining loss.
• Individual liability for employer-only awards: the EAT identified that the basic award under s.122 ERA and the s.38 Employment Act 2002 award for failure to provide particulars are remedies payable against an employer and cannot properly be imposed on an individual respondent. The EAT allowed appeal points on that basis and reduced the second respondent's personal liability by the sums representing those employer-only awards, recalculating the amount for which she remained liable.

Result:

• The EAT dismissed most grounds of appeal but allowed the appeal to the extent of removing the second respondent's personal liability for the basic award and the s.38 EA 2002 award, reducing her personal liability to £34,390.69 (as calculated in the judgment).

Appeal allowed in part. The EAT dismissed challenges to the Tribunal's refusal to make a further contributory-fault deduction (to avoid double counting where a Chagger/Polkey deduction had been applied) and dismissed the argument that the claimant's subsequent employment broke the chain of causation for his later loss. The EAT allowed the appeal insofar as the Employment Tribunal had made the second respondent personally liable for awards (the basic award under the ERA and the s.38 Employment Act 2002 award) which, by statute, can be made only against an employer; those amounts were removed from the second respondent's personal liability and the award against her was reduced accordingly.

Liability judgment by the Employment Tribunal sent 22 November 2019 finding success on ordinary unfair dismissal (s.94 ERA) and disability discrimination (s.15 EqA). Remedy judgment of the ET sent 24 November 2020. Notice of Appeal filed 8 January 2021. Permission and case management steps followed (application under Rule 3.10 EAT Rules heard 22 December 2021 before HHJ Tucker). A proposed cross-appeal by the claimant was sifted and rejected on 16 February 2022 by HHJ Auerbach. By order of Judge Stout on 2 November 2023 the first respondent (company) ceased pursuing its appeal, and proceedings continued in respect of the second respondent. Appeal decided by the EAT on 30 November 2023 ([2023] EAT 170).