Astha Limited & Anor v S Grewal

Where an Employment Tribunal has made a substantial Chagger/Polkey reduction because the claimant’s conduct made a fair dismissal highly likely, it must avoid a further reduction for the same conduct which would impose a double penalty. Alternative employment at lower pay does not necessarily end loss caused by dismissal. If that employment is later lost through unrelated circumstances outside the claimant’s control, the chain of causation may remain unbroken.

A basic award for unfair dismissal and an award for failure to provide written particulars are recoverable only from the employer. An individual respondent who is liable for disability discrimination cannot be made jointly liable for those employer-only awards.

The claimant succeeded in claims for ordinary unfair dismissal under Employment Rights Act 1996 section 94 and disability discrimination under Equality Act 2010 section 15. The Employment Tribunal’s remedy judgment awarded compensation against the company and the second respondent, who was personally liable for the discrimination claim.

After the company withdrew its appeal, the second respondent pursued challenges concerning contributory fault, causation following the claimant’s later employment, and her personal liability for the basic award and for compensation for failure to provide written particulars. The central questions were whether compensation had been wrongly calculated and whether employer-only awards could be imposed on an individual respondent.

1. Appeal allowed in part. The appeal failed on contributory fault and causation, but succeeded insofar as the second respondent had been made liable for awards which could be made only against the employer.

2. The Employment Tribunal made a 75 per cent Chagger/Polkey deduction because the claimant’s conduct made a fair dismissal highly likely. That conduct was at least part of the basis for the deduction. A further reduction under the Law Reform (Contributory Negligence) Act 1945 for the same conduct carried a significant risk of double counting. The Tribunal therefore made no error of law in declining a further deduction, consistently with Lenlyn UK v Kular [UKEAT/0108/16/DM).

3. The claimant’s later employment did not eliminate his loss because it paid less than his former employment. Its subsequent loss as a consequence of the Covid-19 pandemic was through circumstances outside his control. Applying the justice-and-equity approach in Dench v Flynn & Partners [1998] IRLR 653, there was no basis on which the Tribunal could have found that the later dismissal broke the chain of causation. Ground 2 was dismissed.

4. A basic award under Employment Rights Act 1996 section 122 follows a section 94 unfair-dismissal claim and is recoverable only from the employer. The second respondent was consequently not liable for the £5,411.25 basic award. Likewise, an award under Employment Act 2002 section 38 for failure to provide written particulars is made against the employer, not an individual employee or agent. The second respondent was not liable for the further £1,244.88.

5. The award enforceable against the second respondent was reduced by £6,656.13 to £34,390.69, insofar as it was not recovered from the company. The challenge to the basic-award deduction was withdrawn as against the company and academic as against the second respondent.

• Employment Appeal Tribunal: Allowed the second respondent’s appeal only as to her liability for the employer-only awards; dismissed the remaining pursued grounds: [2023] EAT 170.
• Employment Tribunal: Found unfair dismissal and disability discrimination, then made a remedy award sent to the parties on 24 November 2020.