Appealing a dismissal

[ULA]

Unusual for a tribunal to go on that long it must have felt like a very long day once you got to the end but well done for handling that as a litigant in person.

It is good to hear that some of the information provided to you was helpful for your case.

In terms of Polkey, it is a well know case whereby it was established that when an employer has been found to have acted unfairly in dismissing an employee by failing to follow correct procedure this often leads to a finding of unfair dismissal, an employer cannot argue it would have made no difference in the outcome if they had followed procedure. However, if the tribunal decides that the employee may have been dismissed anyway, they can reduce the compensatory award according to that likelihood as a percentage deduction.

Unfortunately I am not surprised that it will take up to a month to get the final judgement, it may be sent out sooner but please to not rely on that being the case. In the meantime try and put it to the back of your mind until such time as you get the Judgement through.

I look forward to hearing the outcome.

[MrSharples]

Hi Ula , just an update which amounts to nothing new really, it's been 5 weeks tommorow since my tribunal, the judge did say it would be about 4 weeks before I would hear anything so I'm assuming her findings could be anytime now. Something I did not mention to you is the closing statement from the rrespondent's solicitor. This amounts to masses amounts of stuff mentioning a lot to do with polkey which I understand, she also goes on quite a bit my failure to provide a proper schedule of losses, however I did provide many documents relating to what I was doing to look for other work ,my only mistake is that I did not provide much information on the et1 form with regards to losses , as the et1 form was filled out not long after I was dismissed anyway. Also just wondering how much the TJ takes into account what is written in their closing statement as most of it is drabble anyway. Thanks again and I will let you know as soon as I hear anything, cheers david

[ULA]

I appreciate that the hardest part is waiting but I also know that the Tribunal services, as you have probably experienced through this process, are not speedy in responding. Highly likely the judgement is waiting to be processed by the Tribunal clerks.

The judge will consider closing remarks but it will be taken in context of the case as it was set out by the respondent. The respondent will have need to proven their case, although it sounds like the closing remarks was was an attempt to set out mitigation factors, in case the judge finds in your favour in terms of any award to be made. However this is only my thoughts based on what you have set out in your post and I was not there are the hearing.

[MrSharples]

Hi Ula , well I finally found the day before yesterday that I had win my appeal for unfair dismissal , however I was really disappointed to learn that the judge decided I was partly to blame and has reduced both the basic and compensatory award by 75%. I always thought in the back of my mind that any awards might be reduced but not by this amount. Anyway I have to now calculate how much I think I should be compensated, the basic award is pretty straightforward I think I get 1 weeks pay for the number of years I was employed which is 2 , I would really like your help with regards to working out the compensatory award, before I do this the judge has stated that she would like both parties to try and do this between ourselves, if we can't she said a remedy hearing will have to take place. I have contacted the original early conciliation officer from Acas who will now try to negotiate again between both parties a settlement figure. I'm now going to try and work out the following

1. How long it was before I found alternative employment.
2. Any other costs incurred as a result of loosing my job.
Basically I am now going to add up the number of weeks I was unemployed between my dismissal and finding a new job , but I'm unsure what I will be allowed to try and claim for.For example I was dismissed on the 20th December and did not find employment until 2nd week in June which was about 25 weeks , however since finding employment with a driving agency in June up until now work has not been full time , sometimes I might get a full weeks work , and sometimes I might get nothing for a week or even more. I'm sure once again your knowledge would be able to point me in the right direction when trying to work for what I should actually try and claim for. I was also made aware ( funnily enough by the respondents solicitors which caused a bit of a stir between 2 of his legal team) that I could claim for other losses incurred by the result of my dismissal, in particular what it cost me to take my HGV Class 1, something I would not have done if I had not lost my job. Taking this test was also proof that I was doing something to try and further my chances of future employment. I would love to hear your thoughts, and once again thank you for all your help leading up to the tribunal ( I honestly would have probably given up had it not been for you and all your invaluable help and assistance). ps if your interested I can in some way forward you all the information on the case which goes into great detail about what happened, alternatively I think the full report might be available on the government website the case number is 2500411/2023 if you or anyone else is interested. Once again many thanks for all your help and anymore help you might be able to pass on , David

[ULA]

Just as a background to the Compensatory Award (CA) it is currently capped at one year's gross pay or £105,707 (excluding pension contributions, benefits-in-kind or discretionary bonuses), whichever is the lower sum.

What you can include in that calculation, from which the ET will make a decision is:

Loss of Wages
This is from the date of dismissal until the Tribunal hearing, net of tax and national insurance contributions. If notice was given to you then the time will run from the end of the notice period until the hearing. If you claimed any benefits up to when you started work then you need to set this out and then you have the fact you started a new job in June for which you need to set out the details of your earnings.

Future Loss of Wages
This is not so relevant as you have now found other work unless the new job pays less in which case you need to detail this out and potentially the tribunal will consider an award based on the time it may take for your new salary to rise to the one you earned in your previous job. However as you can imagine this is not an exact science.

Loss of Perks
If you received any health care, company car or other benefits then monetary compensation may be awarded for the loss of these.

Loss of Employment Protection
You will have to work for 2 years with your new employer to regain unfair dismissal protection, the tribunal will take this into account.

Loss of Pension Rights
There are certain guideline the tribunal will usually follow to work out this figure.

I am really not sure about the comment from the solicitor you can claim for the cost to take your HGV Class 1, I am not going to argue against their expertise. However, there is the potential for compensation is to include expenses incurred in seeking alternative employment but this is typically for travel costs to attend interviews such and such like and generally, this claim is small.

Hope that helps

[MrSharples]

Hi Ula , many thanks for your reply I'm a lot further forward on what I can try and claim for after reading your response, I'm do apologise for being a pain but would you be able to advise me on the above, I'm sure one of the paragraphs is informing us that if we cannot come to an agreement then a remedy hearing will be necessary, however I'm unsure what the other one means , many thanks David

[ULA]

You are correct unless you and the respondent can agree a remedy between you and if you require with the help of ACAS, then a remedy hearing will have to be set with the Trivunal.

The other paragraph is about trying to agree a date for the remedy hearing which will be by video link and is set to be held over one day. You are required to provide the Tribunal with dates in the given months where you would not be available for this hearing. I think they meant Jan 2024.

[MrSharples]

Hi Ula , many thanks for your reply and once again you have been able to advise/answer my query which has helped me a great deal straight away.

I spoke to Acas last week and was put through to my original early conciliator who is now going to try and mediate once again a settlement figure rather than go to a remedy hearing. However I have spoken to her again today and she has informed me that after contacting the respondent last week to inform him that she will be mediating again regarding the case she has had no reply. My situation at the minute is that I now have to come up with a figure and pass this onto her so she can start negotiations with my former employer or his legal team.

My question now is even though the judge has stated that any awards both basic and compensatory will be reduced by 75% I have to still come up with a figure which is reasonable and something I can back up with proof of documents etc when I provide this amount to the early conciliator. I am sure you are perfectly aware that no matter what amount I come up with is going to be open to debate not just by a judge but also by the respondents solicitors, and to be honest what you ask for and what you are awarded can differ greatly both ways favouring either the former employer or me.

Basically after doing a bit of homework there are many cases out there when calculating future losses a judge will take into account these future losses a claimant has put forward and reflect this in any awards given, IE in my case I can prove and provide information that the job I am in now pays much less than my previous job , and to be honest it's not unreasonable to assume that I might never be able to find a job in the near future which will pay the same wages purely based on how long I was employed by my former employer, IE I got a £1.00 pay rise every year. In effect at a remedy hearing a judge could take this into account and agree / decide to award me the difference in pay for the foreseeable future which would amount to a considerable amount as the difference is about £150.00 per week. Other than this I am unsure how much holiday pay I have lost as I do not get any holiday pay in my current job as it is with an agency so I am unsure if it would be right to assume that for the last 11months I've lost the equivalent of nearly 1 years holiday pay.

I have also lost all rights I had with my former employer and it will take another 2years with my new employer to regain these rights , and to top it off there is the hurt to feelings / cause to mental stress etc which all can be taken into account. Based on all the above I do not want to ask for a silly amount of money, however I still do not want to ask for an amount much less than I may be awarded if I went to a remedy hearing. I am well aware that this is a difficult question even for someone like yourself to answer but before I come up with a figure to give the early conciliator before a remedy hearing.

I would really to hear your thoughts based on all of the above, if it helps you in anyway the figure I already have in my head is around £12,000 this is basically 6 months wages I lost before I found another job , which I think is reasonable and fair, however I'm aware this could be much less than I might be awarded if I went to a remedy hearing, I do apologise for the length of my post and I do hope it makes sense, thanks David

[ULA]

I set out in my post #80 what could potentially make up the figure for your compensatory award and you said that you have a figure for your basic award.

Claiming injury to feeling can only be done in successful claims for discrimination and the award for this is set out by way of the Vento band.

In terms of holiday pay even as an agency worker you are entitled to paid holiday so I am confused by your statement "Other than this I am unsure how much holiday pay I have lost as I do not get any holiday pay in my current job as it is with an agency..."

It is only once you know what the total is of all these figures (which is 100%) that you can consider where to start your opening settlement figure which needs to take into account the 75% reduction in basic and compensatory. Remember that it is a negotiation and best to go in higher than you are willing to settle at because the respondent will start at their lowest point and may then have to move upwards.

[MrSharples]

Hi Ula , once again many thanks for your reply which again has helped me greatly, yes you are correct re holiday pay in my new job I get an extra £1.00 per hr for this , so many thanks for that , moving on I would really appreciate it if you could give me your thoughts on the following taking into account paragraph 110 and 113 in the judges report. I am fully aware and understand that both basic and compensatory award will be reduced by 75% and understand why the judge has decided to deduct this amount, however whilst trying to negotiate with the corespondents solicitors, I gave them a figure for my compensatory award and deducted 75% from this figure, they have replied saying that I must deduct another 80% , because there was a 80% chance that I would have been dismissed in any event had they followed the right procedure. See paragraph 113 , I understand what the judge has stated in this paragraph, however there is no mention whatsoever that that this figure relates to any further reductions. The way it reads to me is that because there was an 80% chance that I would have been dismissed in any event I'm going to have my award reduced by 75% , and not a reduction of 80% then a further reduction of 75%. I'm really sorry if this is confused but as mentioned this is what the solicitors are trying to say. If they are correct I will end up with £1,400 according to them , which seems ridiculous, many thanks David

[ULA]

So effectively the judge is saying that there was a contributory element therefore for you compensatory award 75% should deducted. In addition the judge is saying at 110 that even if all things has been dealt with correctly there would have been an 80% chance that the dismissal would still have occurred.

Yes it sounds like this is what the solicitor is saying.