Employment Cases Update

Davies v DL Insurance Services Ltd UKEAT/0148/19/RN

Date published: 21/04/2020

Appeal against the ET’s failure, having concluded that the Claimant’s dismissal for redundancy was unfair, to make a re-engagement order. Appeal allowed.

The Claimant, having been made redundant by the Respondent and having applied unsuccessfully for a number of alternative roles, brought claims in the ET for unfair dismissal for redundancy, reinstatement or re-engagement, and compensation. The ET found that the Claimant had been unfairly dismissed for redundancy, and it made an award of compensation, but it did not make a re-engagement order on the basis that it had not been given enough information to identify a suitable alternative role for the Claimant. The Claimant appealed on the grounds that the ET had erred (1) in giving inadequate reasons for its decision on re-engagement and failing to apply the correct legal test, (2) in taking an inconsistent approach to the calculation of compensation, and (3) in its approach to making the Polkey deduction.

The EAT held that the ET failed to ask itself the correct question in relation to re-engagement, and failed to apply the correct approach by considering that, to avoid making an order, it was enough for the employer to say that the Claimant was not the best candidate; further, the ET did not calculate the compensation by reference to the loss sustained, but by reference instead to a lower figure arrived at by taking an inconsistent approach to loss of earnings and to earnings in mitigation, and it did not take into account all facts and matters in coming to its assessment. Accordingly, the appeal would be allowed and the matter remitted to the same ET.

Read the full text of the judgment on BAILII or download the file by clicking the link below.