Claimant v Hilco Capital Limited
Outcome
Individual claims
All three claimants were unfairly dismissed. The tribunal at the liability hearing found the dismissals were unfair due to procedural failings and, for Claimant 1, the dismissal was automatically unfair under s.103 ERA 1996 due to protected disclosures. The tribunal determined via Polkey that the claimants would not have been dismissed if a fair procedure had been followed.
Claimant 1 was automatically unfairly dismissed due to her protected disclosure to Mr Smiley and Mr Kaup. The tribunal found at the liability hearing that she was subjected to detriments and ultimately dismissed for making those disclosures.
Claimant 1 was subjected to detriments as a result of her protected disclosure: she was placed in a pool of employees based in the Middlesbrough office and the respondent failed to consult with her in any meaningful sense. These detriments were linked to her whistleblowing.
Claimant 1's victimisation claim failed. The tribunal at the liability hearing found that she was not subject to victimisation as a result of any protected acts under the Equality Act 2010.
All three claimants succeeded in their breach of contract claims. The respondent was in breach of all three claimants' contracts of employment by its failure to pay bonuses for the year ending April 2017.
Facts
Three claimants were dismissed in October 2017 from the respondent's Middlesbrough office. A liability hearing in 2018 found all three were unfairly dismissed, with Claimant 1 automatically unfairly dismissed for whistleblowing (protected disclosures). The respondent failed to follow a fair redundancy procedure and the tribunal concluded the claimants would not have been dismissed if a fair procedure had been followed. This remedy hearing in November 2020 determined compensation. Claimant 1, a senior employee earning £117,550 p.a., had not applied for any jobs, instead working unpaid on a dormant business venture. Claimants 2 and 3 had actively sought work but remained unemployed.
Decision
The tribunal awarded compensation to all three claimants. Claimant 1 was awarded £244,328.45, but her losses were capped at 85 weeks (to June 2019) for failing to mitigate by not seeking paid employment after the liability judgment. Claimants 2 and 3 were awarded £45,005.42 and £59,321.04 respectively, with their unfair dismissal awards subject to the statutory cap. All three succeeded in breach of contract claims for unpaid bonuses. The tribunal rejected the respondent's attempt to reopen the Polkey issue, finding it had been definitively determined at the liability hearing with a zero percent reduction.
Practical note
A whistleblowing claimant must still reasonably mitigate loss: engaging in an unpaid dormant business venture without seeking paid employment is unreasonable once the reason for dismissal (the protected disclosure) is in the public domain following a liability judgment.
Award breakdown
Award equivalent: 154.2 weeks' gross pay
Legal authorities cited
Statutes
Case details
- Case number
- 2500154/2018
- Decision date
- 10 May 2024
- Hearing type
- remedy
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- financial services
- Represented
- Yes
- Rep type
- barrister
Employment details
- Salary band
- £100,000+
Claimant representation
- Represented
- Yes
- Rep type
- barrister