Thanks to James English of Hempsons solicitors for preparing this case summary
Can an employment tribunal carry out a speculative assessment of a Claimant's working hours, possible dismissal and the impact on their loss of earnings?
Yes, held the EAT in Little v Kerry Ingredients (UK), but they must set out their findings and reasons clearly.
The Claimant was employed as a Maintenance Engineer by the Respondent food processing company. Following a heart attack, he returned to work on full pay, working about 50% of his normal hours. His employer asserted that this was a 'non-job', he was productive for only 20% of his time, and his duties were covered by his colleagues and an agency worker. His claims, including unfair dismissal and disability discrimination, were upheld. The employment tribunal found that he would have worked 70% of his hours for a further 39 weeks, although there was a 20% chance he would be fairly dismissed within that time.
The employer's appeal was upheld. Whilst it was not wrong for the employment tribunal to engage in the speculative assessment that he would increase his hours from 50% to 70%, they had to engage with the evidence before them. It might have been a legitimate conclusion but they had to spell out their findings. The finding that he would not return to work full-time fed into the prospect that he might have been fairly dismissed, bearing in mind the duty to make reasonable adjustments. These conclusions were not necessarily perverse but the employment tribunal would need to set out their findings clearly. The matter was remitted to the same tribunal to consider these matters.