Danny Duployen v Whyte & Mackay Limited

Where an employment tribunal may make an order under section 113 of the ERA, it must first consider reinstatement and, if it declines that remedy, must then consider re-engagement. The practicability inquiry is not confined to what is physically possible. It asks whether it is reasonable to expect the possible step to be taken on the facts found.

An appellate tribunal will not interfere with a tribunal’s evaluative awards for injury to feelings or mitigation of loss where the tribunal applied the relevant guidance, considered the material facts, and reached a conclusion open to it. A failure to consider interest on discrimination awards requires correction.

The appellant, a forklift truck and warehouse operator, succeeded before the Employment Tribunal in claims for constructive dismissal and disability discrimination. The tribunal declined reinstatement, awarded compensation including £7,500 for injury to feelings, and limited financial loss to six months because of inadequate mitigation.

The tribunal later reconsidered its decision. It maintained that re-engagement had not been sought and stated that it would not have ordered it in any event.

The appellant appealed on reinstatement, re-engagement, injury to feelings, mitigation, and interest on the discrimination awards. The central questions were whether the tribunal had properly addressed the statutory remedies and whether its remedial assessments disclosed errors of law.

1. Appeal allowed in part. The Employment Appeal Tribunal dismissed the challenges to reinstatement, re-engagement, injury to feelings and mitigation. It allowed the appeal only insofar as the Employment Tribunal had omitted interest on the discrimination awards.

2. The tribunal correctly treated reinstatement as not reasonably practicable. Practicability does not mean bare possibility. The question is whether it is reasonable, on the facts found, to expect the employer to carry into effect what is possible. The tribunal was entitled to find that the parties’ relationship had broken down to the extent that reinstatement should not be ordered.

3. Once the tribunal was entitled to make an order under section 113 of the ERA, it had to consider reinstatement first and, on declining it, re-engagement. The tribunal therefore erred in initially failing to consider re-engagement. However, the error was cured on reconsideration. Re-engagement had not been sought or explored in evidence, leaving no evidential basis for such an order; on the evidence, declining re-engagement was the only available decision.

4. The tribunal had correctly applied the guidance in Vento. It was entitled to assess this as a less serious case within the lower band, while selecting an award at the upper end of that band. The award was not perverse merely because a different tribunal might have selected the middle band.

5. The mitigation finding was also open to the tribunal. The appellant’s five job applications in nine months supported its conclusion that his efforts were inadequate and that suitable alternative work ought to have been obtained within six months.

6. The respondent conceded that interest should have been considered on the injury-to-feelings and financial-loss awards for discrimination. The judgment was varied so that interest runs at 8% per annum from 14 February 2022, the midpoint between the first discriminatory act and the tribunal’s judgment, until payment.

• Employment Appeal Tribunal: Appeal allowed only on interest; the tribunal’s judgment was varied.
• Employment Tribunal, Glasgow: In a judgment sent to the parties on 29 September 2022, the tribunal upheld claims of constructive dismissal and disability discrimination, declined reinstatement, and made basic and compensatory awards.
• Employment Tribunal, Glasgow: A reconsideration judgment dated 5 April 2023 and sent on 26 April 2023 made minor revisions but otherwise confirmed the decision.