In an employment tribunal case, a Claimant (i.e. employee or worker) is the person who brings the claim against the Respondent (the individual or organisation responding to the claim i.e. the employer). If the Claimant is successful in his or her claim, the Employment Judge has the power to make a financial award to the Claimant. Following is a reminder of the awards made by the employment tribunal:
Unfair dismissal
Compensation for unfair dismissal is made up of a basic award which is similar to a redundancy payment (therefore a maximum basic payment of £15,750 (with effect from 6 April 2019) and a compensatory award. The maximum compensatory award a tribunal can award to an employee who brings a successful unfair dismissal claim is the lower of £86,444 or 52 times the ex-employee’s gross weekly pay for dismissals occurring on or after 6 April 2019.
Note: the calculation for a “week’s pay” is set out in Part 14 of the Employment Rights Act 1996 and is either the amount payable under the contract for working normal hours in a week or, where the pay varies with the amount of work done, the average amount paid over the 12 weeks prior to dismissal. It therefore does not include other elements of the remuneration package, such as benefits (pension, car, health cover etc). Note also that salary sacrificed under a salary sacrifice arrangement is not included within the definition of a “week’s pay”. The maximum total basic and compensatory awards for unfair dismissal £102,194 for dismissals occurring on or after 6 April 2019.
Note also the following:
• Automatic unfair dismissal – basic award: a minimum basic award of four weeks’ pay (£2,100 as from 6 April 2019) is made where a dismissal is regarded as automatically unfair under section 98A(i) of the Employment Rights Act 1996 if the basic award is less than this amount. However such an award need not be made where it would result in injustice to the employer.
• Unfair dismissal – minimum basic award: for unfair dismissal for a reason related to the complainant’s appointment as a Health and Safety representative, exercise of rights under the Working Time Regulations, activities as a pension scheme trustee, activities as an employee representative in connection with redundancies or a transfer of undertakings is £6,408 from 6 April 2019.
Union membership
The minimum basic award for dismissal or selection for redundancy on grounds related to union membership or activities is £6,408 (as from 6 April 2019). The minimum compensation awarded for exclusion or expulsion from a trade union is £9,787 as from 6 April 2019. The award for unlawful inducement relating to trade union membership activities, or for unlawful inducement relating to collective bargaining is £4,193 as from 6 April 2019.
There is no limit on the amount of compensation for cases of whistleblowing, certain health or safety matters, or discrimination due to a protected characteristic and awards may include compensation for injury to feelings in discrimination cases. Guidance on injury to feelings awards was set out by the Court of Appeal in Da’Bell v NSPCC (these are known as the “Vento” bands). For claims issued on or after 6 April 2019, the bands are:
• Lower band: £900 to £8,800 – to reflect less serious cases (for example minor one-off occurrences)
• Middle band: £8,800 up to £26,300 – for serious cases that don’t merit the highest awards
• Upper band: £26,300 up to £44,000 – for more serious cases (for example a campaign of harassment)
• Exceptional cases: £44,000 to unlimited
• These bands were due to be reviewed in March 2019 and annually thereafter.
Damages for personal injury
Where damages for personal injury cover long-term loss of earnings, the award is discounted to reflect the fact that it is paid upfront in one go and can be invested. The reduction has been 2.5% since 2001, however this has been reduced to 0.75%. This may result in higher awards for long-term loss of earnings for personal injury in discrimination and detriment cases. The way this figure is calculated went under review in early 2019.
Breach of contract claims
The maximum award a tribunal can make is £25,000. In addition, the tribunal may award the following:
• Refusal of right to be accompanied at a grievance or disciplinary meeting: 2 x a week’s pay
• Failure to consider a flexible working request: 8 x a week’s pay
• Failure to provide written particulars of employment: 4 x a week’s pay
• Interest is incurred if the awards are not paid within 42 days (or within 14 days in discrimination cases). Tax and NI are not normally deducted if the payment is made to an ex-employee, unless over £30K or reinstatement has been ordered.
Aggravated breach of employment rights
With effect from 6th April 2019, the maximum award a tribunal can make is £20,000 (previously this was £5,000).
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