Mr F Aziz v Jaguar Land Rover Ltd: 1301391/2017

Case No. 1301391/2017 EMPLOYMENT TRIBUNALS BETWEEN Mr Fahad Aziz and Jaguar Land Rover Limited (Claimant) (Respondent) Held at Birmingham On: 11 April 2018 30 April 2018 (in chambers) Before: Employment Judge T Coghlin QC, Mrs D Hill and Mr J Reeves Representation: Claimant: Mr W Horwood, counsel Respondent: Mr A Rozycki, counsel REMEDY JUDGMENT (1) The respondent is ordered to reinstate the claimant by no later than 28 May 2018. (2) Pursuant to section 114(1) and (2) of the Employment Rights Act 1996, the sums owed by the respondent are as follows: (a) 39 weeks’ pay, based on a gross weekly rate of £603 but subject to appropriate deductions for tax and national insurance, in respect of the period from 1 February to 31 October 2017; (b) 25.86 weeks’ pay, based on a gross weekly rate of £629.53 but subject to appropriate deductions for tax and national insurance, in respect of the period from 1 November 2017 to the date of this judgment (30 April 2018); 1 Case No. 1301391/2017 (c) pay, based on a gross weekly rate of £629.53 but subject to appropriate deductions for tax and national insurance, on an ongoing basis from the day after the date of this judgment until such time as the respondent complies with the order for reinstatement; (d) however the sums referred to in (b) above are to be reduced by the sum of £1,050 being the amounts earned by the claimant by way of mitigation during the relevant period. (2) The respondent is ordered to pay the claimant compensation for injury to feelings in the sum of £13,000. (3) The respondent is ordered to pay the claimant interest on the award for injury to feelings in the sum of £1,181.70. 2 Case No. 1301391/2017 REASONS Introduction 1. This remedy judgment follows, and should be read alongside, the tribunal’s judgment on liability dated 14 March 2018. 2. The tribunal heard evidence from the claimant himself, and from Mr Carl Tronier for the respondent. The tribunal was also provided with a small bundle of documents, to which a further document was added during the course of the hearing by the respondent, which we agreed to admit into evidence for reasons which were given orally during the hearing. 3. The parties were represented, as before, by Mr Horwood for the claimant and Mr Rozycki for the respondent. The tribunal is grateful for their assistance, and for the helpful and realistic way in which they presented their cases. We are particularly grateful to them, and to those who instructed them, for making reasonable concessions and agreeing matters so as to reduce the areas of dispute. Reinstatement 4. The first issue which we had to address was the question of reinstatement. The law 5. Sections 112 to 117 of the Employment Rights Act 1996 (ERA) provide for the remedies of reinstatement and re-engagement. The tribunal has a discretion as to whether to make such an order and as to what order to make: see sections 112(3), 113 and 116(1) ERA. 6. Section 116(1) sets out, at paragraphs (a)-(c), three matters which the tribunal must take into account when exercising its discretion as to whether to order reinstatement: whether the claimant wishes to be reinstated, whether it is practicable for the employer to comply with an order for reinstatement, and, where the claimant caused or contributed to his dismissal, whether it would be just to order his reinstatement. This list of potentially relevant factors is not exhaustive, but the parties did not suggest that there were any other relevant factors which the tribunal ought to weigh. 7. The claimant has confirmed that he does wish to be reinstated. His evidence, which we accept, was that he enjoyed his work at the respondent, he felt it “became home” for him, the people he worked with were “great” and he enjoyed his time there. Although he has now obtained an offer of employment in a call centre in a bank, which he is due to start in July 2018, that work is less well paid, it is not in his normal field of work and would not utilise the skills he has built up over the years. 8. Mr Rozycki made it clear that, although the tribunal has found that the claimant did contribute to his dismissal, the respondent did not contend that this was a matter which the tribunal should take into account on the particular facts of this case. 3 Case No. 1301391/2017 9. The only remaining issue was the factor identified in section 116(1)(b) namely practicability. Considerations of practicability potentially come into play twice in such cases: first, when the tribunal is considering ordering reinstatement, and second, if reinstatement is ordered and the employer fails to comply with the order. 10. In Timex Corporation v Thomson [1981] IRLR 522 the EAT (BrowneWilkinson P presiding) said this: ''In our judgment there is no need for an [employment] tribunal to reach a final conclusion that re-engagement is practicable before making any such order. If, having made an order for re-engagement, it proves not to be practicable to perform it there are no adverse consequences for the employer. If the employee asks for compensation by reason of the failure of the employers to re-engage, no order for additional compensation can be made under [s 106] if the employer satisfies the tribunal that it was not practicable to comply with the order. Therefore at that stage the [employment] tribunal will have to decide, looking at the matter in the knowledge of the actual facts which have occurred, whether or not it was practicable to carry out the order. At the stage when the order to re-engage is being made, it is not in our judgment necessary for the [employment] tribunal, looking at future possible events, to make a definite finding that the order for re-engagement was practicable. They must have regard to the question of practicability and if they are satisfied that it is unlikely to be effective, they will no doubt not make an order. The only strict requirement is that they should have regard to practicability'.” 11. The Court of Appeal approved that analysis in Port of London Authority v Payne [1994] ICR 555. The court held that ''… some determination has to be made at stage 1. But the determination or assessment is of necessity provisional. The final conclusion as to practicability is made when the employer finds whether he can comply with the order within the period provided for reinstatement or re-engagement. At this second stage the burden of proof rests firmly on the employer'.” 12. While the burden of proof rests with the employer at the second stage, there is at the first stage, no such burden on the employer, and there is no statutory presumption of practicability: First Glasgow Ltd v Robertson UKEATS/0052/11/BI at [11]; Lincolnshire County Council v Lupton [2016] IRLR 576 at [19]. 13. In the course of submissions Mr Rozycki suggested that the question of practicability was one for the employer to decide, and that the tribunal should only interfere with that assessment if it was one which fell outside the range of responses open to a reasonable employer. We do not consider that that is the law. The question of practicability is a question of fact for the tribunal, albeit that the tribunal should give due weight to the commercial judgment of the management unless the employer’s evidence be disbelieved: Port of London Authority v Payne at p574. The position is probably different where the relevant issue as to practicability related to the existence or otherwise of trust and confidence between the parties (see United Lincolnshire Hospitals NHS Foundations Trust v Farren [2017] ICR 513) but that is not the issue here. Mr Rozycki accepted, rightly in our view, that in this case no issue arises of any breakdown in trust and confidence as between the claimant, on the one hand, and the respondent, his colleagues, or his managers, on the other. 14. The relevant test is not one of possibility but of practicability: “The employer does not have to show that reinstatement or re-engagement was impossible. It 4 Case No. 1301391/2017 is a matter of what is practicable in the circumstances of the employer's business at the relevant time”: Port of London Authority v...