The claimant was successful in her claim for unfair dismissal. The issue arising in this appeal related to the decision made at the remedies hearing. At the initial remedies hearing the claimant sought compensation and re-engagement. The Tribunal awarded compensation but did not order re-engagement. At a second remedies hearing, re-engagement was again refused but the level of compensation was increased from £46,153.55 to £128,961.59. The issue arising for the EAT to decide upon was whether the Tribunal should have deducted the £46,153.55 (which had already been paid by the second remedies hearing) from the second award and then used the statutory cap of £74,200.

The EAT noted that the respondent had complied with the remedy that was originally awarded. They did this being unaware that the Tribunal may revisit the level of the award bearing in mind the question of re-engagement being refused. The issue was the construction and interpretation of Section 125(5) of the Employment Rights Act 1996 (Article 158 of the Employment Rights (NI) Order 1996 in Northern Ireland). The respondent argued that ‘taking into account’ within Section 124 and 125 required the deduction of the sum that had already been paid. They stated that deducting the payment before the cap had been applied would mean that the respondent would not get credit for the payment of the first award. The EAT outlined its sympathy with the position of the respondent but stated that the wording of the statute was clear. The intention was that the Tribunal should calculate the total compensation and then subtract from it any prior payments. This meant that the cap would then apply fresh to the increased compensatory award. So this means that £74,200 was awarded fresh from the £46,153.55 that had already been paid.

There was also an appeal made in relation to the decision not to award re-engagement. The Tribunal outlined that where there is a second remedies hearing or an appeal the appellant in such a situation should not be able to change their stance in relation to going back into a particular role. This would allow for a second bite of the cherry and would ago against the principle of finality which is required in litigation. Therefore, this aspect of the appeal was dismissed.

Practical Lessons

This case provides a demonstration of how Article 158 of the 1996 Order applies where there have already been payments made in relation to the case. It does seem rather unfair that the respondent is having to pay above the cap on the basis that they had decided to comply with what they felt was their duty with the first remedy award that had been made. However, the statutory cap then applying after the payment already made meant that they were, in totality, paying far greater than the statutory cap. It is clear within the statute, but it may be something that needs to be examined by way of reform.

https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-o-dafiaghor-olomu-v-community-integrated-care-2022-eat-84