In Acetrip Ltd v Dogra UKEAT/0238/18, the EAT took a close look at the tribunal's reasoning on valuing such a high compensatory award, providing employers with a valuable insight into the matters Tribunals may take into account.
Mr Dogra (an Indian national) was brought to the UK on a Tier 2 visa by his employer, Acetrip, a travel agency, who agreed to pay Mr Dogra the minimum level of salary required by the visa of £23,000 pa. As well as paying Acetrip a substantial fee for training, his employer then demanded that Mr Dogra repay to his employer half of his monthly salary. Finding he could not live on such a sum, Mr Dogra complained and there was 'an altercation'. Mr Dogra then commenced a period of sickness absence and was then dismissed.
The Employment Tribunal unanimously held that Mr Dogra was automatically unfairly dismissed after asserting a statutory right in respect of his wages. This means that the statutory cap on unfair dismissal awards did not apply. The tribunal made a compensatory award in excess of £120,000.00 to Mr Dogra which was well in excess of what Mr Dogra had asked for as it included loss of earnings up to the end of his visa in 2020 and the tribunal also applied a 25% ACAS uplift.
In the EAT, Acetrip argued on various grounds that the tribunal's approach to the compensatory award was in error. The EAT agreed that the tribunal had not provided sufficient reasoning in respect of its approach to several aspects of the compensation award, however the EAT did not regard the sum of the award itself as excessive or unlawful.
These points were all remitted to the tribunal for further consideration, meaning that it is possible that the same, or similar, compensatory award might still be made by the tribunal - just with further reasoning's for its judgment being provided.
This case is likely an example of when a tribunal uses its considerable discretion in respect of the size of the compensatory award to financially penalise a rogue employer. Luckily, most law abiding employers are unlikely to face such prospects in a remedy hearing.
In order to support arguments for why long periods of losses should not be awarded, employers embroiled in tribunal proceedings should consider collating evidence of steps the employee could be taking to mitigate his/her losses - for example, jobs the employee could apply for, as evidence of the availability of employment in the local market.
For more information please contact Helen Clayton in our Employment Law team on 0117 314 5457, or complete the form below.