The claimant was dismissed and won his claim of unfair dismissal which was not appealed. The claimant was awarded loss of earnings up to the date of the hearing plus another 6 months loss of future earnings. The respondent appealed on the basis that the claimant had no right to remain in the UK beyond a particular date and therefore compensation should not have been awarded after this date.

The EAT allowed the appeal. The Employment Tribunal had erred in law in awarding compensation for loss of earnings for a period after the claimant's leave to remain in this country, extended under Immigration Act 1971 section 3C(2)(c), had expired. Although the ET noted that the claimant had been informed that the UKBA had refused his application for indefinite leave to remain and that he could stay pending determination of his appeal, the ET failed to make findings as to when his appeal was dismissed. The claimant had failed to comply with an order of an Employment Judge to disclose relevant documents passing between him or his solicitors and the UKBA.
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Appeal No. UKEAT/0472/11/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 13 June 2012

Before

THE HONOURABLE MRS JUSTICE SLADE DBE, MRS M V MCARTHUR FCIPD, MR D NORMAN

KINGS CASTLE CHURCH (APPELLANT)

MR F OKUKUSIE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
DR VICTOR ONIPEDE (of Counsel)

Direct Public Access

For the Respondent
MR NIRAJ MODHA (of Counsel)

Bar Pro Bono Unit

UNFAIR DISMISSAL – Compensation

The Employment Tribunal erred in law in awarding compensation for loss of earnings for a period after the Claimant's leave to remain in this country, extended under Immigration Act 1971 section 3C(2)(c), had expired. Although the ET noted that the Claimant had been informed that the UKBA had refused his application for indefinite leave to remain and that he could stay pending determination of his appeal, the ET failed to make findings as to when his appeal was dismissed. The Claimant had failed to comply with an Order of an Employment Judge to disclose relevant documents passing between him or his solicitors and the UKBA. One such which was before the EAT showed that he had no right to remain after 10 May 2010. Questions of causation which may arise in other cases were not material to this appeal. The answer to the issue the EAT was rightly directed by the President to determine was whether the ET were entitled to award compensation to the complainant on the basis that he was permitted to work when he was not. Appeal allowed. Compensatory award set aside and an award calculated up to the last day the Claimant was permitted to work substituted. The Claimant subsequently succeeded in an application for a permit but this was nearly a year after the expiry of the original permission.

1. The King's Castle Church appeals from the Judgment of an Employment Tribunal sent to the parties on 22 November 2010, by which compensation was awarded for unfair dismissal of £19,210. We will refer to the parties by their titles before the Employment Tribunal, the Claimant and the Respondent.

1. The Employment Tribunal held that the Claimant had been unfairly dismissed; there is no appeal from that finding. By direction of the President of the Employment Appeal Tribunal, Langstaff P, the issues before us to be determined are: first, whether the Employment Tribunal were entitled to order compensation for a period of time as though the Respondent could work lawfully during that time, when he could not; and second, whether the Respondent failed to produce documents relating to his immigration status that were necessary for the Employment Tribunal to understand the argument as to his entitlement to work.

1. It was agreed on behalf of the Claimant, by Mr Modha in his very helpful skeleton argument that the Claimant had no right to work in paid employment after 10 May 2010. The Claimant required a permit to work and a permit to be in this country. He is Nigerian. It is also agreed on behalf of the Claimant that before the Employment Tribunal the Claimant did not, save for a few of them, produce certain documents which he had received from the UK Border Agency regarding his immigration status and his applications for leave to remain and to work. In particular, he did not produce to the Employment Tribunal a letter dated 18 May 2010 from the UK Border Agency. So far as that letter is concerned the Claimant says, through counsel, that he provided that letter to his solicitor but the solicitor did not insert that letter in the bundle of documents for use before the Employment Tribunal.

1. From the outline of facts given in the judgment of the Employment Tribunal, it appears that the Claimant was first a volunteer and then employed by the Church. Mr Oluwatula was the founder of the Respondent church. When the church became a charity he was the charity's Chief Executive. The Claimant was a student volunteer at the church in 2003. On 20 September 2005 the church wrote to the immigration agency supporting the Claimant's application for leave to remain in the United Kingdom. On 6 March 2006 the Claimant started work as a part time salaried employee and associate pastor. On 24 October 2006 the Claimant and his wife and children were grated further leave to remain until 11 October 2009.

1. In August 2009, two months before the leave to remain was due to expire, the Claimant asked the Respondent if they would give a letter in support of his application for indefinite leave to remain. The Claimant was under the mistaken belief that he satisfied the requirements for being granted such indefinite leave, despite the fact that he had not been in paid employment for five years, in a category of work not requiring a work permit. Being a minister of religion is in such a category. However, the five-year provision was not satisfied.

1. On about 14 September 2009 the Respondent provided such a letter of support. Thereafter difficulties arose between the Claimant and the Respondent, which ultimately led to his being given a final written warning and his summary dismissal on 10 February 2010. He appealed against his dismissal, but that appeal was rejected on 29 March 2010. In the meantime the Claimant received a letter from the UK Border Agency on 19 January 2010. That letter was referred to in paragraph 30 of the Employment Tribunal's Judgment:

"On 19 January 2010 the Claimant received from the UK Border Agency a notice of immigration decision, which stated that his application for indefinite leave to remain in the United Kingdom as a Minster of Religion had been refused on the basis that 'the Secretary of State is not satisfied that you have spent a continuous period of 5 years in the United Kingdom in this capacity'."

1. The Tribunal observed that the notice, went on to specify the Claimant's appeal rights and in a "Reasons given for refusal" letter it was clear that, provided the Claimant appealed the decision, he did not have to leave the country. The Tribunal noted that the Claimant received such notification on 21 January 2010, but did not inform the Respondent of it, and further, that an email which he subsequently sent the Respondent on 3 February in reply to a request by the Respondent for an update on his work permit situation was, as the Tribunal found, misleading, because the Claimant had said:

"On 3 February 2010 email, since your major concern has always been and still is the work permit and what I got is an acknowledgement of the receipt of the application in their possession. I feel I should wait until the work permit comes through before I bring it to your notice."

The Tribunal considered that to be misleading because by that time the notification that his application had been refused had already been received by the Claimant.

1. The Tribunal concluded that the principal reason for the dismissal of the Claimant was, as set out in paragraph 48 of the Judgment, the Claimant's conduct in not providing immigration information when he had it and misleading Mr Oluwatula about that. The Tribunal concluded that the dismissal was unfair because:

"49. […] in our view no reasonable employer, motivated by legitimate concern or fear would not take steps to establish whether those fears were well founded or not. In this case the claimant was not in the UK illegally until his appeal rights were exhausted and the respondent's fears were therefore ill founded."

1. The Tribunal further held at paragraph 51 of the decision:

"[…] we still come to the conclusion that no reasonable employer would have failed to give the claimant a clear warning that without this presentation of his immigration documents, he would be dismissed."

For those reasons the Tribunal held that the dismissal was unfair.

1. The Employment Tribunal then considered remedy. In paragraph 53 they held:

"The claimant was seeking reinstatement and the Tribunal considered both reinstatement and reengagement very carefully: is this a case in which reinstatement or reengagement is not appropriate bearing in mind the immigration issues which have been present throughout."

The Tribunal concluded that reinstatement or reengagement was not appropriate.

1. They then considered the issue of compensation. The Tribunal held at paragraph 55:

"We then came to consider compensation and we have made the following award, which accepts the claimant's assertion that it will take him a further six months from the date of the Tribunal hearing to replace the earnings either by way of other employment or possibly from the establishment of his own fellowship and any remuneration that can be derived from that."

1. In paragraph 56 the Tribunal calculated a basic award in respect of which there is no appeal. The Claimant was given four weeks' notice after his dismissal on 10 February and thereafter he was awarded loss of earnings calculated on the basis of the earnings he was receiving from the Respondent. The amount ordered was £9,450, based on 31.5 weeks' net pay. The Tribunal then added a further six months loss of salary, and awarded £250 for loss of statutory rights. They applied a 10 per cent uplift on account of what was described as, "the respondent's unreasonable failure to comply with the ACAS Code." We consider that reference to the ACAS code must be a reference to the now repealed statutory dismissal procedure, rather than the ACAS code. The Tribunal then deducted 10 per cent from the award to recognise the Claimant's contributory fault.

1. Mr Onipede for the Respondent, in commendably succinct submissions, contended that the Employment Tribunal erred in awarding compensation in respect of a period when it was agreed that the Claimant was not entitled to work. That was a period from 11 May onwards. He contended that the Employment Tribunal did not have before it, because it was not provided by the Claimant, with relevant immigration information. The Claimant had been obliged to disclose that information to the Respondent and produce it to the Tribunal by an order made at a case management discussion. That order had not been complied with. It was contended that the Claimant could not have continued to be employed by the Respondent without the appropriate work permit. Therefore there was an error of law by the Tribunal proceeding as it did to award compensation without consideration of the Claimant's right to work.

1. The order made at a case management discussion ordering the disclosure of relevant material, was an order made by Employment Judge Hargrove on 6 July 2010. The material provision is at paragraph 2:

"By no later than 3 August 2010 the claimant must disclose to the respondent all communications in his possession or control or that of his immigration solicitors, CM Solicitors, between the Claimant and his solicitors on the one hand, and the Home Office or Border Agency on the other concerning his immigration status and his right to work as a minister of religion from 2006 onwards."

1. Mr Modha for the Claimant says that, but for the Claimant's unfair dismissal, he would have been provided by the Respondent employer with a letter in support of his application for permission to remain in this country or in support of a fresh application. The likelihood is that armed with that support he would have been given leave to remain and he would have been permitted to continue to work. Mr Modha contended that Employment Tribunals in assessing compensation do not err if they speculate as to what may happen. In this regard he accepts that the argument he advances does support the decision of the Employment Tribunal is based on two speculations: first, that the Respondents would have given a letter of support to the Claimant to enable him to progress his application with the UK Border Agency; and further, speculation that the UK Border Agency, with that material, would have granted his application. Mr Modha draws our attention to a Judgment of the Employment Appeal Tribunal, HHJ Hargrove QC and members in Hilton International Hotels UK Ltd v Faraji [1994] ICR 259, in which they dismissed an appeal by employers from a decision of a Tribunal which based an award of compensation on the approach taken in personal injury cases in determining what was just and equitable compensatory award.

1. Pursuant to the Employment Rights Act 1996, section 123, a compensatory award is subject to the provision in sub-section (1):

"Subject to the provisions of this section and sections 124(a) and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer."

1. Whilst in another case it may be relevant and fruitful to consider causation arguments, this Appeal Tribunal is not a Tribunal of fact. We address the question posed to us by the direction of the President having regard to the Judgment of the Employment Tribunal considering the material that was and which should have been before them. The Employment Judge was asked certain questions by the direction of HHJ David Richardson in the Employment Appeal Tribunal. The Employment Judge was asked how certain findings were taken into account in the Tribunal's award of compensation. The findings referred to were as follows:

"Further findings made by the Tribunal but omitted from the written reasons were as follows: A work permit is not required in order to work in the UK as a 'Minister of religion' – this is an exception to the general rule. The Claimant could, therefore, work as a minister of religion in the UK (despite the initial decision letter from the Border Agency which he received on 19 January 2010) until such time as his presence in the UK became illegal. He was entitled to work in the UK after 19 January 2010 as a minister of religion and that was the role in which he was employed by the Respondent."

1. In response to the question posed the Employment Judge replied:

"The Tribunal considered that the Claimant could lawfully have continued in the employment of the Respondent after 19 January 2010 as a minster of religion. His losses were therefore attributable to the action of the Respondent, in dismissing him, until such time as those losses could reasonably be mitigated. The reasonableness of his attempts to mitigate those losses was assessed against the fact that the Claimant would require a work permit to engage in work other than as a minister of religion and the likelihood or otherwise of that being available."

1. It is to be noted that there was a reference by the Employment Tribunal in their decision to the letter which was before them of 19 January that stated that the Claimant's application for indefinite leave to remain in the UK as a minister of religion had been refused. The Tribunal noted that the notice went on to specify the Claimant's appeal rights, and in a reasons given for refusal letter it was clear that provided the Claimant appealed the decision he did not have to leave the country. The Tribunal therefore seemed to have or ought to have appreciated from their record of this letter that it was material to know whether the Claimant appealed from this refusal and, if so, when and how that appeal was determined. However, there is no finding of fact made by the Tribunal as to these very important matters.

1. There has been included in the papers before us a document which should have been before the Employment Tribunal which the Claimant says he gave to his solicitor but his solicitor did not put in the bundle. Whoever's fault it was, it was simply not in the bundle, and it should have been there. This is a letter dated 18 May 2010 from the UK Border Agency addressed to the Claimant's solicitors saying:

"As you are aware your application to remain in the United Kingdom was refused on 18 January 2010. You appealed this decision and the appeal was subsequently dismissed on 12 March 2010 and the following High Court review request refused on 7 April and 10 May 2010 respectively and your appeal rights were exhausted on 10 May 2010. You therefore have no legal basis to remain in the United Kingdom."

1. It is quite rightly agreed by counsel on behalf of the Claimant that he had no right to work in this country after 10 May 2010 until eventually an application made on 5 April 2011, almost a year later, for leave to remain, was granted. The Employment Tribunal therefore, in our judgment, proceeded on a basis which omitted enquiry into a material matter, to which they had been alerted by the 19 January letter: whether there had been an appeal against the refusal of indefinite leave to remain, and if so, when that appeal had been determined. Those matters are not in dispute, nor is their consequence in dispute: that the Claimant had no right to continue to work in this country after 10 May 2010.

1. In our judgment, the Employment Tribunal erred in failing to enquire into and make findings in respect of material matters to which they had been alerted by the finding that they made regarding the 19 January 2010 letter and by the Claimant's failure to produce documentation which he was ordered by another Employment Judge to produce; the letter of 18 May 2010 and other documentation. The Tribunal, being well aware that there were questions about the Claimant's immigration status, erred in making an award of compensation on the assumption wrongly made that the Claimant could continue in employment with the Respondent. They erred in making their award of compensation based on his earnings with the Respondent when in fact he would not have been permitted to continue in such employment. Accordingly, this appeal succeeds.

1. We set aside the award of compensation made and substitute for it an award of loss of earnings up to 10 May 2010 together with the other unchallenged elements in the award of compensation. Counsel has very helpfully reached an agreed figure: £4,464.90. Accordingly, we set aside the award made by the Employment Tribunal of £19,018 and substitute for it an award of £4,464.90.