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Employment Tribunal Remedy

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Was a tribunal wrong to fail to decide on all aspects of a discriminatory constructive dismissal claim, and then indicate that it would have reduced by 100% compensation for lost earnings if the Claimant had won?

Yes, held the EAT in Wytrzyszczewski v British Airways.

The Claimant was a short-serving cabin crew member, he resigned and brought claims for constructive dismissal as both automatically unfair for whistleblowing, and discriminatory, along with other claims. The discriminatory dismissal claim related only to a comment having been made about the Claimant’s national origin at a meeting, and the employer’s failure to investigate his subsequent complaint.

The tribunal dismissed all claims, finding the national origin comment inoffensive. The tribunal failed, in a particularly complex claim, to address the second aspect of the discriminatory dismissal claim, failing to investigate the impugned comment. The tribunal also made alternate findings about remedy, holding that the Claimant’s employment would inevitably have ended with his probationary period, and so they would have made a 100% Polkey reduction to compensation for lost earnings.

The EAT overturned the decision on the discriminatory unfair dismissal as the second part of the claim had not been adjudicated upon, which was an error of law. Finding the comment inoffensive did not mean that any failure to investigate the complaint about it was not discriminatory. The EAT noted that making alternative findings about remedy was often sensible as they may encourage settlement if there is a prospect of an appeal, or may affect claims in other jurisdictions, but such findings must be properly reasoned. The case was remitted to the same tribunal for further findings.

Thanks to Ed McFarlane for preparing this case summary.