The claimant brought claims of unfair dismissal, outstanding notice and holiday pay, a failure to give written reasons for dismissal and various complaints under the WTR. The respondent conceded that the claimant had been unfairly dismissed and the ET hearing proceeded to determine only remedy. The claimant was awarded a total of just over £10,000. The claimant appealed, arguing that the ET had erred by failing to adjudicate on the claimant's claims under the WTR, notice, holiday pay and written reasons, and had wrongly admitted into evidence a letter from the respondent headed 'without prejudice' when assessing the compensatory award and limiting the period of compensation.

The EAT upheld the appeal. The letter which was properly said to have been without prejudice could not be referred to at the trial absent the consent of the parties and the claimant had not given his consent to privilege being waived. The claims under the WTR did not appear to have been determined by the ET and these were also remitted to a fresh ET for rehearing.
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Appeal No. UKEAT/0224/11/ZT

*EMPLOYMENT APPEAL TRIBUNAL*

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

At the Tribunal

On 28 March 2012

*Before*

HIS HONOUR JUDGE PETER CLARK, MR B BEYNON, MRS M V McARTHUR FCIPD

MR S O ROBERTS (APPELLANT)

ALDI STORES LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR S O ROBERTS (The Appellant in Person)

For the Respondent
MR R HIGNETT (of Counsel)

Instructed by:
Messrs Freeth Cartwright LLP Solicitors
One Colton Square
Leicester
LE1 1QH

*PRACTICE AND PROCEDURE*

*Admissibility of evidence*

*Bias, misconduct and procedural irregularity*

Various complaints not determined by Employment Tribunal. Those remaining remitted for hearing, subject to limitation issue. Admissibility of without prejudice material also remitted for further consideration.

1. The parties to these proceedings before the Cardiff Employment Tribunal are Mr Roberts, Claimant, and Aldi Stores Ltd, Respondent; we shall so describe them. The Claimant was employed by the Respondent as manager of their store at Llandrindod Wells from 3 July 2006 until his employment terminated on 31 March 2010. By his form ET1 lodged on 28 June 2010 he complained of unfair dismissal, outstanding notice and holiday pay, a failure to give written reasons for dismissal and various complaints under the *Working Time Regulations 1998* (WTR). The claims were resisted and came on for hearing before a Tribunal chaired by Employment Judge John Thomas on 1 December 2010. Having initially put the fact of dismissal in issue, by a letter dated 29 November 2010 the Respondent's solicitors conceded that the Claimant had been dismissed unfairly. On that footing the hearing proceeded to determine only remedy for unfair dismissal. The Tribunal found by a Judgment with Reasons promulgated on 10 February 2011 that the Claimant was entitled to a basic award in the sum of £1,140 and a compensatory award of £8,911, a total award of £10,051.

1. Against that Judgment the Claimant brings this appeal. Following earlier case management orders in this Appeal Tribunal the issues arising for determination at this full hearing are (1) whether the Tribunal erred in failing to adjudicate on the Claimant's claims under WTR for pay in lieu of notice, holiday pay and failure to give written reasons for dismissal ("the other claims"); and (2) whether in assessing the compensatory award for unfair dismissal the Tribunal was wrong (a) to admit into evidence a letter from the Respondent dated 1 July 2010 headed "Without Prejudice" and (b) in limiting lost earnings to a period ending on 1 July 2010 ("unfair dismissal remedy").

1. Although the Respondent's concession that the Claimant was unfairly dismissed did not extend to the reason for dismissal, as a result of the discussion before us it is clear that the statutory cap on the compensatory award contained in section 124(1) of the *Employment Rights Act 1996* (ERA) applies in this case. The principal complaint raised by the Claimant in this part of the appeal is that Employment Judge Thomas, sitting alone in advance of the full hearing on 1 December 2010, was wrong to rule in favour of the Respondent that the Respondent's letter dated 1 July should be admitted in evidence at the full hearing.

1. The position is further complicated by the fact that that letter refers to two earlier meetings held between the signatory, Mr Casey, the Regional Managing Director, and the Claimant on 28 May and 11 June 2010. Before us Mr Roberts initially contended that at the start of the 28 May meeting Mr Casey told him that everything that was said at the meeting was without prejudice. After Mr Hignett referred us to the minutes of that meeting Mr Roberts corrected himself, saying that comment was made at the start of the 11 June meeting, which was not minuted. Mr Hignett was unable to take instructions on that late assertion.

1. Conversely, the minutes of the 28 March meeting, now agreed to have been an open meeting, do not on their face appear to contain a firm offer to the Claimant of alternative employment at the Respondent's Brecon or Hereford stores. Since it was the Tribunal's finding that the Claimant had unreasonably refused an offer of re employment by the Respondent following his dismissal that led to his loss of earnings claim being limited to 1 July 2010, the question as to whether an open offer was made becomes critical. Mr Hignett submits that the notes of the meeting held on 28 March were not comprehensive. He accepts, however, that the without prejudice issue must return to the Employment Tribunal for reconsideration. We agree, as does the Claimant. Applying ordinary principles, a meeting or letter properly said to be without prejudice cannot be referred to at a trial absent consent of the parties, and Mr Roberts did not give his consent to privilege being waived.

1. It is common ground, and indeed apparent on the face of the record, that the Tribunal did not adjudicate on the other claims. The Claimant says that he did not abandon or withdraw those claims, contrary to the impression conveyed in the Employment Judge's comments to the Employment Appeal Tribunal, and Mr Hignett does not contend that he did. It follows that those claims, in so far as they remain extant, must now be determined by the ET. That said, we should comment on the other claims in turn.

1. The Claimant's principal complaint is that he was required to work more than 48 hours per week during September and October 2009, in particular when a colleague was off sick. He did not raise below a claim specifically under section 45A ERA, and on his factual case no such claim arises. Further, any claim under section 101A ERA is subsumed in the Respondent's unfair dismissal concession. However, he does appear to raise claims under regulation 30(1) WTR, which have not been determined. Those claims in turn are subject to a limitation point taken by the Respondent under regulation 30(2); that point now requires determination by the ET as a preliminary matter.

1. Mr Roberts realistically accepts that in so far as the compensatory award for unfair dismissal covers a period of loss during the notice period he cannot recover the same amount twice.

1. The parties agree, and we record, that the Claimant is owed one day's holiday pay.

1. This claim is now conceded by the Respondent, and again we record that the Claimant is entitled to an award of two weeks' pay under section 93 ERA.

1. We shall allow this appeal and direct that the issues of unfair dismissal remedy and the WTR complaints be remitted to a fresh ET for rehearing. We further direct that in advance of the substantive hearing there should be a PHR to determine (a) the without prejudice issue and (b) the limitation issue in the WTR complaints.

1. Finally, and for the avoidance of doubt, we record, and endorse, the agreement between the parties that the reference to section 122(1) ERA in paragraph 4 of the Tribunal's Reasons is misplaced. No offer of reinstatement bearing on the basic award arises in this case, and indeed a full basic award was ordered. The issue under section 123 ERA is whether the Claimant unreasonably refused an open offer of re employment such as to amount to a failure to mitigate his loss, applying the principle set out in the Judgment of Potter LJ in Wilding v British Telecommunications PLC [2002] ICR 1079 at paragraph 37.