Speculation

Although tribunals can engage in speculation when trying to work out compensation for a claimant, the Employment Appeal Tribunal (EAT) held in Kerry Ingredients (UK) Ltd v Little that they must spell out their findings and make clear the evidential basis on which they were made.

Thompsons was instructed by Mr Little’s union, GMB, to act on his behalf.

Basic facts

Mr Little, a maintenance engineer since 2007, worked a three-shift system to deal with equipment breakdown or malfunction. In January 2011 he had a heart attack and was off work until December when he returned on a reduced hours’ basis. The company, which wanted him to return full time, told him in January 2012 that there was no pressure on him to do so.

However, following a review of engineering staff, the company found that although he was at work for 18 hours a week, the company was paying him his full salary whilst also paying an agency worker to cover his other duties. It therefore decided that his work could be done by other shift engineers and his temporary role was surplus to requirements.

It then invited him to a review meeting at which he was told him that his employment would be terminated as of 25 April 2012. He was not allowed a trade union representative to accompany him at the meeting and the company also ignored a letter he brought with him which he had written in March, raising concerns about how the company was treating him as a disabled person. He brought claims of unfair dismissal and disability discrimination.

Tribunal decision

The tribunal held that the dismissal was unfair as the company’s decision that he would never be able to perform his duties was outside the range of reasonable responses. It had assured Mr Little that he could plan his own phased return to work but then dismissed him without any consultation or discussion without carrying out a proper investigation. It also upheld his claims of discrimination arising from disability and indirect discrimination as well as a failure to make reasonable adjustments.

The tribunal calculated his loss on the basis that Mr Little would have continued to be unable to work more than 70 per cent of his contractual hours from his dismissal to the date of hearing and awarded a future loss of 39 weeks. As there was a possibility he would have been fairly dismissed in the foreseeable future, it reduced the award by 20 per cent.

EAT decision

The EAT pointed out that Mr Little had given evidence that he could possibly return to work full time within 16 weeks, yet the tribunal had concluded that he would only have been able to increase his hours to work on a 70 per cent basis, working at a 50 per cent basis at the date of his dismissal. Although the tribunal was not wrong to engage in speculation based on what had happened in the past, it should have had regard to all the evidence before it, including the company’s evidence that he was only working productively for 20 per cent of the time. The same applied to the question of loss which it had limited to 39 weeks.

The tribunal’s conclusions were not necessarily perverse but it was not clear from its reasoning that it had adopted the correct approach as it had failed to spell out its findings and had reached conclusions without making clear the evidential basis on which they were made.

The EAT therefore remitted the case to the same ET to re-hear the issues concerning Mr Little’s pecuniary losses and to make clear the basis on which it reached its findings.