Appeal allowed. Held: The purpose of s. 207A is to penalise employers for failing to comply with a Code of Practice, which should not be disapplied in a case in which the employee has not contributed to that non-compliance. In the present case, the Tribunal erred in focusing on the applicability of the code to the outcome of the disciplinary procedure rather than to whether it had or should have been invoked, with the result that a 65% reduction for contributory fault and denial of an uplift on what remained amounted to impermissible double accounting. Further, it erred in concluding that the Code of Practice did not apply. Ezsias v North Glamorgan NHS Trust  UKEAT 0399 distinguished; When calculating pension loss, the Tribunal failed to make a finding on the critical issue of whether the claimant was likely to find alternative employment which gave him a pension, with the result that it did not apply the correct methodology to calculating the loss.
Held: The Tribunal failed to properly characterise whether the dismissal was procedurally or substantively unfair, which had consequences for both the determination of liability and the calculation of compensation. In regard to liability, the finding of unfair dismissal was upheld, albeit on a more limited basis. The Tribunal made no error of law in its conclusion that it was unfair to proceed with a disciplinary hearing in the absence of two panel members or in its criticism of the length of the first day's hearing. That fundamental procedural unfairness was not cured by appeal. In regard to compensation, the only sustainable basis for a decision not to make a Polkey reduction was due to one or more procedural flaws and not substantive unfairness. As such, it was necessary to decide the chance of the claimant being fairly dismissed if a fair procedure had been adopted, which was relevant to a reduction for contributory conduct (per Rao v Civil Aviation Authority  ICR 495). As the Tribunal had made firm but erroneous conclusions, it was necessary to remit the Polkey and contributory conduct issues, with guidance, to a fresh tribunal. The issue of pension loss was also remitted to be heard de novo.
Akwiwu & Anor v Onu  UKEAT 0283_12_0105 - 01/05/13
Appeal by the respondent concerning the applicability of the National Minimum Wage Regulations and a finding of unlawful direct discrimination and a cross-appeal by the claimant against the dismissal of a claim for indirect racial discrimination and victimisation. The claimant was a migrant worker, who had been employed by the respondents as a domestic servant, having obtained a migrant workers visa.
Held: i) The exemption in regulation 2(2)(a), National Minimum Wage Regulations is satisfied where the worker is integrated into the family, which is determined by an overall assessment of the facts (per Nambalat v Taher & Ors  EWCA Civ 1249). In the present case, the Tribunal's finding that the claimant was not integrated into the family was a finding of fact that was not perverse; ii) There is a distinction between 'criterion' cases of discrimination where discrimination is inherent in the act itself and 'reason for' cases where the act is rendered discriminatory by the conscious or subconscious mental processes of the discriminator (per Amnesty International v Ahmed  UKEAT 0447_08_1308; R (E) v Governing Body of JFS  UKSC 15). In 'reason for' cases, the fact that a claimant has migrant status is a relevant background circumstance contributing to vulnerability, but is not in itself a reason for different treatment amounting to direct discrimination. The present case fell into the 'reasons for' category. Although the features which enabled exploitation were not indissociably linked with migrant status, there were other factors relating to the claimants difficulties with education, income and possible language. As such, the Tribunal erred in concluding that there was direct discrimination on the ground of race or national origin; iii) The claim that the provision, criterion or practice (PCP) (s. 19, Equality Act 2010) was the 'mistreatment of migrant domestic workers' was entirely circular and committed the error of assuming that because treatment is obnoxious it is also indirectly discriminatory. As such, the PCP claimed did not give rise to indirect discrimination; iv) Although not expressly provided for in the Equality Act 2010, the Tribunal has jurisdiction to consider a victimisation claim pursued after an employment relationship has ended. In the present case, the victimisation claim was wrongly dismissed. The fact that the proceedings were not solely about race discrimination matters did not have the effect that to threaten retaliation for bringing the proceedings was not an act of victimisation.
Permission to appeal allowed so that a definitive answer could be given as to the proper construction of the Equality Act.
Appeal dismissed. Held: The Judge was entitled to find the effective date of termination as he did and there was no basis in law for interfering with his exercise of discretion in relation to extensions of time, both under the Employment Rights Act and in relation to race discrimination; whether under the Race Relations Act 1976 or under the Equality Act 2010.
Held: The correct approach to awards under s. 189, set down in Susie Radin v GMB  EWCA Civ 180, requires a tribunal to have regard to the following matters: first, the purpose of the award is to penal and not compensatory; secondly, the discretion is wide but should be focused on the seriousness of the employer's default; thirdly, seriousness may vary from the technical to a complete failure; fourthly, the deliberativeness of the failure may be relevant, as may the availability to the employer of legal advice; finally, it is for the tribunal to assess the length of the protected period, although the proper approach in a case were there has been consultation is to start with the maximum period (90 days) and reduce it only if mitigating circumstances justify a reduction. In the present case, the Tribunal failed to have sufficient regard to the insolvency of the employer and that a consultation period of 90 days was simply not possible. To meet the gravity of the claims of the employer's failures, while taking into account the circumstances relating to its insolvency, the appropriate level of award was 60 days.
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