1. The appeal raises disparate points that, for ease of reference, are most usefully considered under separate headings, as set out below.

The Appeal and the Claimant's Submissions

1. The first issues raised relate to the application of the 20% ACAS uplift. The points made are encapsulated at paragraphs 1 and 2 of the amended grounds of appeal, as follows:

"1. The Employment Tribunal erred in law by failing to apply uplift of 20% to the entire unfair dismissal award contrary to TULR(C)A 1992 schedule A2 (paragraph 28 reasons for dated 2 June 2015). The Employment Tribunal should have first calculated the compensatory award for [the] unfair dismissal period and applied uplift of 20% and then deducted the wrongful dismissal to avoid double counting. In the circumstance taking at face value of £3011.44 the Tribunal had failed to add £602.29. The Employment Tribunal has failed to realise there are two ways in which concurrent claims can be calculated. Either (a) calculate the damage for wrongful dismissal first and then deduct this figure from the compensation award for unfair dismissal or (b) calculate damage and then start the unfair dismissal period from the day after the damages period ended. The Tribunal used the latter but has failed to add the uplift.

2. The Employment Tribunal erred in law by failing to apply an uplift of 20% at paragraph 70 of Judgment dated 2 June 2015. The Employment Tribunal found there was [a] breach of working time regulation and unlawful deduction from wages. It was the parties' agreed understanding that that award is subject to ACAS uplift pursuant to TULR(C)A 1992, schedule 2A. Hence the Tribunal erred in failing to add £413.86 x 0.2 = £82.77 to the total award."

1. As the ET had found the Respondent liable for an ACAS uplift on the unfair dismissal award, the Claimant submits there is no principled reason why the entirety of the compensatory period should not have been taken into account for those purposes, subject to a reduction in the total award to ensure no double recovery with the separate award made for wrongful dismissal. The unfair dismissal and wrongful dismissal claims were concurrent; it was open to the ET to calculate the compensatory award for the purpose of the unfair dismissal claim, and apply the uplift to that, before deducting the sum that would be attributable to the notice period (support being given for this as an approach by the Employment Tribunal Remedies Handbook 2015-2016 (2nd Edition, Bath Publishing), at page 16). If the sum awarded by way of compensation for wrongful dismissal was deducted from the unfair dismissal award before applying the uplift (as the ET had done here) it would not be applied to the entirety of the unfair dismissal award, which was contrary to the ET's intention in making the uplift.

1. As for the holiday pay claim, the ET had found there had been a breach of the Working Time Regulations and the agreed position of the parties before the ET had been that the ACAS uplift would equally apply to the holiday pay award; certainly, the Respondent's Counter-Schedule of Loss seemed to demonstrate that understanding (that the uplift was also to be applied to the holiday pay award). Whilst the ET had not clearly stated that there should be any uplift to the holiday pay claim, the parties had essentially agreed this.

The Respondent's Submissions

1. For the Respondent, it was contended that the ET was bound to apply the order of deductions from the compensatory award as had been set out in Digital Equipment Co Ltd v Clements (No.2) [1997] ICR 237 EAT (as qualified by the Court of Appeal; see [1998] ICR 258). In any event, it had reached a permissible view as to the application of the uplift.

1. On holiday pay, the Respondent contends that the inclusion of a figure for holiday pay in its Counter-Schedule before the ET was simply an error and irrelevant to the issues. The Counter-Schedule had post-dated the Liability Judgment, in which the ET had not found that the Respondent had unreasonably failed to comply with a relevant Code in relation to holiday pay. The Respondent's Counter-Schedule could neither change the finding already made by the ET nor confer an entitlement on the ET to uplift that award.

The Claimant in Reply

1. By way of reply, the Claimant observed that if she had been fairly dismissed at a future date (as the ET suggested) her compensatory award for unfair dismissal would have included a sum to take into account her entitlement to accrued holiday pay, which would thus have been made subject to the uplift. There was no error in the Respondent's Counter-Schedule.

Discussion and Conclusions

(i) Unfair Dismissal/Wrongful Dismissal - Order of Calculations

1. The first point made under this head relates to the ET's approach to the unfair dismissal compensatory award, specifically to its decision to first assess the damages due to the Claimant in respect of her wrongful dismissal claim. Had there been no wrongful dismissal claim, the compensatory award for unfair dismissal would have run from 12 August 2013, giving an additional two months' pay, to which the ET would then have applied the ACAS uplift.

1. In this case, however, there had also been a successful claim of wrongful dismissal. The Claimant was not entitled to double recovery for the same period; either the compensatory award for unfair dismissal purposes was to start at the expiry of the period compensated by the wrongful dismissal award (the course adopted by the ET) or that sum (pay for the notice period) would need to be deducted from the unfair dismissal compensatory award. In the Employment Tribunal Remedies Handbook 2015-2016 relied on by the Claimant, it is allowed:

"There are two ways in which concurrent claims can be calculated and double counting avoided."

1. In the normal course of events it would make little difference as to how this was done (the authors of the Employment Tribunal Remedies Handbook identify that the approach adopted by the ET in the present case might be preferable as it avoids any risk of the recoupment provisions being applied to the wrongful dismissal damages and it would enable any adjustment, e.g. for compensatory fault, to be more easily determined). When applying the ACAS uplift, however, the Claimant says the ET should have proceeded to calculate the total loss from the effective date of termination for the purposes of the compensatory award, apply the uplift and only then deduct the wrongful dismissal sum. To do otherwise, she says, undermines the ET's intention to apply a 20% uplift to her compensation for unfair dismissal.

1. Initially, I had been troubled that the course urged by the Claimant might run counter to the guidance provided by the EAT and Court of Appeal in Digital Equipment v Clements (see above) but that case was concerned with deductions for sums paid by the employer as compensation for the dismissal (including any pay in lieu of notice), not with the ET's award for wrongful dismissal. I consider, therefore, that it is right to say the ET has a choice as to how to proceed in a case where there are concurrent wrongful and unfair dismissal claims.

1. I can further see, as the Claimant urges, that the course adopted by the ET in the present case may give rise to unintended consequences in terms of any ACAS uplift; that might particularly be so where an ET is concerned with a longer notice period and where the employee was able to find alternative work (so as to mitigate their losses) shortly after the notice period expired. That said, I do not consider that an ET in such a case would be bound to adopt the alternative approach (to calculate first the compensatory award in the unfair dismissal case (including the application of the ACAS uplift) and only then deduct the sum due for the wrongful dismissal); it seems to me this will be a matter for the discretion of the ET.

1. In the present case, it is unclear whether the ET considered this permissible exercise of discretion; whether it intended to apply the uplift only to the unfair dismissal award in respect of the period of loss arising at the end of the notice period. I suspect it did not expressly consider the point because it was not specifically highlighted. That said, I accept that the Claimant's Schedule of Loss assumed the uplift would be applied to the entire period of loss. In the circumstances, I consider that the appropriate course is to allow the appeal on this ground and to remit this point to the ET to specifically address the question whether it intended the ACAS uplift to be limited to the unfair dismissal compensation only in respect of the Claimant's losses after 12 October 2013. If it did not, it would be open to the ET to re-visit the approach to the calculation of the concurrent claims so as to give proper effect to its intention in respect of the uplift of the unfair dismissal compensatory award.

(ii) Holiday Pay/Unauthorised Deductions

1. The second point raised in respect of the uplift is different and relates to a separate claim for holiday pay/unauthorised deductions arising from an earlier period of sick leave. This was not part of the calculation of the Claimant's loss falling to be compensated as a consequence of the finding that she had been unfairly dismissed (and to the extent that the Claimant's submission in reply suggests that it was, I consider this to be in error). In truth this is a point of challenge made in reliance on a slip made in the Respondent's Counter-Schedule of Loss. This did not amount to a concession of the Claimant's right to an uplift in respect of her holiday pay/unauthorised deductions claim and it is plain that the ET's finding in respect of the uplift was itself unrelated to this claim.

1. The uplift awarded by the ET was made in relation to the unfair dismissal claim; specifically, as to how the Respondent dealt with the Claimant's grievance. The Respondent's error in its Counter-Schedule of Loss did not, and could not, extend this to the holiday pay/unauthorised deductions claim. The appeal on this basis is ill-founded and duly dismissed.

The Appeal and the Claimant's Submissions

1. By her third amended ground of appeal, the Claimant complains the ET failed to take into account holiday entitlement when projecting forward in respect of her continuing losses. This relates to the finding that the Claimant - who had been ill and, as the ET found, unable to work if her employment had continued - would have gone on to SSP for 28 weeks and would then have been on no pay. The Claimant contends that the ET should have taken into account her statutory holiday entitlement, which would have given a further 15.08 days at full pay (not simply SSP), as was apparent from her Schedule of Loss (see Wood v Mitchell SA UKEAT/0018/10/CEA, supra).

The Respondent's Submissions

1. For the Respondent, it had initially been argued that this was an attempt to add in a further holiday pay claim when none was made; it was not a point taken before the ET and it was not open to the Claimant to seek to argue this now. At the oral hearing of the appeal, however, Mr Heath accepted that the Claimant had indeed included this sum in her Schedule of Loss and he could, therefore, not deny that it had been raised below, albeit that it had not be emphasised and was essentially left for the ET to discover the point for itself.

Discussion and Conclusions

1. As the Respondent acknowledged in oral argument, the Claimant's entitlement to paid holiday was included within her Schedule of Loss, setting out the various benefits to which she said she would have been entitled, and which would, therefore, have fallen to have been taken into account when assessing her losses for the purposes of her unfair dismissal compensatory award. The ET fell into error in failing to have regard to the paid holiday entitlement when carrying out its calculations and the appeal is therefore also allowed on this ground. Although the amount claimed is fairly small and should be capable of agreement, as I am remitting this matter on other points, I consider I should also remit this issue for reconsideration.

The Appeal and the Claimant's Submissions

1. The next issues addressed by the Claimant (paragraphs 5 to 7 of the amended grounds of appeal), relate to the ET's award in respect of pension loss, the appeal being put on the following bases:

(1) The ET failed apply the official Pension Guidance and to use either the simplified approach or the substantial approach in calculating the value of loss of pension rights and, in consequence failed to adequately compensate the Appellant for loss of pension rights.

(2) The ET had failed to take into account evidence before it (from the Yearly Statement for Stakeholder Group Pension Plan), which showed there was a contribution made by both the Claimant and Respondent and a tax relief was added to the monthly pension contribution payments too.

(3) More specifically, the ET had failed to add pension rights loss during the sick pay. The evidence showed that, during sickness pay, the Claimant was paid full pension contribution from the Respondent and tax relief. There was no evidence for the ET to conclude that the Respondent would not have made any contribution during SSP paid or during the holidays accrued during the 28 weeks' SSP period.

1. The official Pension Guidance referred to by the Claimant is that contained within the booklet "Compensation for Loss of Pension Rights - Employment Tribunals". Accepting that a failure to apply the approaches set out in that booklet would not, of itself, amount to an error of law (not least as those guidelines had been withdrawn), both the substantial and the simplified approaches allowed in the guidelines had been relied on by the Claimant (in the alternative) before the ET. Whichever way the point was considered, the Claimant had lost out: the ET's approach - which only included compensation in respect of the employer's contributions to pension - did not properly compensate her.

1. That failure arose, first, by only looking at the employer's contributions; the ET had thereby failed to take into account the loss to the pension scheme arising from the fact no payments were made - whether by the Respondent or the Claimant - during the relevant period and also the tax effect of that and/or the potential costs involved if the Claimant later (after receiving the ET's Judgment) sought to mitigate her loss by making payments into the scheme (or another pension scheme). It needed to look at the impact of that loss on her pension scheme. The ET also failed to award any amount for the tax relief that she would have been entitled to on her contributions in the pension scheme (calculated as £35.84 per month).

1. Further, the ET failed to award the Claimant any pension benefit for the period of SSP, when there was evidence before it that the Respondent had previously paid pension contributions for an earlier period when the Claimant was in receipt of SSP.

The Respondent's Submissions

1. For the Respondent it is observed that the guidance relied on by the Claimant had been withdrawn as being out of date. In any event, it cannot understand the objection to the ET's reasoning on this point; essentially it came down to a perversity challenge. The ET had, in essence, adopted the simplified loss approach, which was appropriate given its finding in this case that the Claimant would not have continued to be employed until retirement (see Griffin v Plymouth Hospital NHS Trust [2014] EWCA Civ 1240, in particular at paragraphs 65 and 67, and see Harvey on Industrial Relations and Employment Law **at paragraph [2606]).

1. As for the question of pension loss during the period when the Claimant was in receipt of SSP, the Respondent accepted there was evidence of payment of pension contributions continuing for an earlier five day period when the Claimant was in receipt of SSP, but there was no evidence that those benefits would have continued for the entirety of the long term SSP. Ultimately, this was a perversity argument and the Claimant had to show an overwhelming case that no reasonable ET would have failed to pick up on the reference to the previous period of SSP in its Liability Judgment and the evidence that pension contributions had continued over that period. It was certainly not a point rehearsed in the Claimant's witness statement.

The Claimant in Reply

1. In reply, Mr Simret introduced a new document which he said had been before the ET and made good his submission that he had put the Claimant's pension loss both on the simplified and the substantial loss approaches (in the alternative).

1. For the Respondent, Mr Health was unable to recall this document and (having the opportunity to check his fuller papers during the short adjournment) was unable to find a copy of it amongst his files. That said, he acknowledged that (as had occurred at the hearing of the appeal) a number of documents had been handed to the ET at various times by Mr Simret and Mr Heath was unable to say with certainty that this particular item had not been handed in (although he was fairly confident that the Claimant had not given evidence on it).

1. Relying on this document, the Claimant contended it showed clearly the way in which her pension loss claim had been put before the ET and demonstrated that the award made had failed to properly compensate her. In particular, even if the Claimant had been fairly dismissed in June 2015, the document relied on suggested she would have been entitled to future pension loss to her expected date of retirement (and the different - lower - figure that had been given in the Claimant's skeleton argument for the appeal had been wrong in that regard).

Discussion and Conclusions

1. The ET explained how it approached pension losses and made clear its award was based on the Claimant's gross pay less only tax and National Insurance, plus the Respondent's monthly contribution to the pension scheme (rounding up to the higher of the possible figures in that regard). As the Claimant's contributions would be made out of her net pay, to make an additional award in that respect would have amounted to double recovery; that explains the ET's reasoning in not making an additional award for the Claimant's pension contributions.

1. More generally, it is apparent that the ET effectively adopted the simplified loss approach (although not expressly using that label). As this was a case where the ET had found that the Claimant's employment would have ended some time before what would otherwise have been her retirement date, that was an appropriate course. Mr Simret's additional document, setting out how the Claimant's case on pension loss was put before the ET, sought compensation for losses in this regard going to retirement; it effectively ignored the ET's finding that the Claimant's employment would have ended some time earlier (her losses attributable to the Respondent being limited to the expiry of the SSP period, on the ET's findings). This was not akin to a whole-career loss case. The ET may not have used the label "simplified approach" but it is apparent that this is how it approached its task. Given its findings of fact, it was entitled to do so.

1. As for tax relief, the ET took the view that the Claimant had not lost out because it remained open to her to invest the sums it awarded into her pension and thus gain the tax benefit. Again that is consistent with a broad brush application of the simplified loss approach and I consider it was a permissible course for the ET to follow. More generally, Mr Simret has been unable to point me to any evidence showing a loss to the scheme for the limited period when contributions were not made into it.

1. The last point made under this head is, however, different and relates to the ET's conclusion that there was insufficient evidence that the Respondent would have continued to make contributions into the pension scheme during the period when the Claimant would have been on SSP. In explaining its conclusion in this regard, the ET does not refer back to the evidence of the earlier week of ill-health absence when the Claimant was on SSP but when both she and the Respondent continued to make contributions into the pension scheme. It may be that the ET did not consider that evidence particularly helpful in determining the position for a much longer period of SSP but I accept that this was potentially relevant evidence to which I cannot be sure that the ET had regard. In the circumstances, I consider that the appeal should also be allowed on this point and this particular issue remitted for reconsideration.

The Appeal and the Claimant's Submissions

1. Finally, by paragraph 9 of the amended grounds of appeal, the Claimant challenges the ET's limitation on her continuing losses arising from its finding that her employment would either have ended at the end of the SSP period, on her dismissal, or she would in any event have been on zero pay, and the ET did not consider it would be appropriate to then make any further award for potential future loss thereafter.

1. In support of this contention, the Claimant relies on Johnson v Rollerworld UKEAT/ 0237/10/JOJ, see paragraphs 22 and 23 as set out above. She contends the ET should not have found her employment would have terminated after the SSP period. By the date of the Remedy Hearing, she had been declared fit to work and the ET should have identified when she could have returned to work, not imported an arbitrary cut-off period.

The Respondent's Submissions

1. For the Respondent it is observed the ET found as a fact that the Claimant became unfit for work by reason of a brain infection from December 2013 and would have been unfit for work by reason of that condition and its aftermath until at least June 2015 (see paragraph 49 of the Remedy Judgment). It had, further, specifically addressed the hypothesis that the Claimant would have been dismissed during the 28 week period in which she would have received SSP but held that the evidence did not support that (paragraph 58). It legitimately found, however, that the length of time that the Claimant was unfit for work on account of her brain infection (18 months) meant that she would have been lawfully dismissed for reasons of her long term absence; the hypothetical scenario the ET was addressing was straightforward and, in those circumstances, it had adequately set out its findings and conclusions.

1. In Johnson v Rollerworld, the EAT had been addressing an appeal against an ET's decision in which the reasoning had been insufficiently explained (see paragraph 31 of that case). Although the EAT had been critical of the reasoning there provided, it had not laid down that an ET was required to work though the entirety of a (hypothetical) unfair dismissal case in order to assess whether or not the employment might have been terminated lawfully and fairly at some point in the future. In such cases, ETs often have to make assessments based on very little evidence; the ET in the present proceedings had been faced with very slim evidence and had reached a permissible and adequately reasoned conclusion on that basis.

Discussion and Conclusions

1. The ET was charged with determining the award it considered to be "just and equitable" (section 123 ERA). In so doing, it was entitled to adopt a common sense approach, particularly when projecting forward as to what would have taken place had the Claimant not been unfairly dismissed when she was.

1. A finding that the Claimant would, in any event, have been dismissed or would have moved on to zero pay (so as to mean she suffered no continuing loss) after such a lengthy period of ill-health is not, on its face, entirely surprising. The real question raised by this ground of appeal, is whether the ET's reasoning adequately explains what it found or whether it fell into the same error as the ET in the Rollerworld case.

1. In the present case, the ET had expressly rejected the Respondent's argument that dismissal would have occurred during the period covered by SSP but then continued:

"58. … Once her SSP entitlement expired, however, her losses fell to zero, either because she might have been dismissed at some point after that date, or, even if not, because, still being unfit for work, she would then have been on zero pay."

1. If the ET's reasoning stopped there, I consider that the position would, indeed, have been akin to Rollerworld: it would not have been possible to know whether the ET had found that the Claimant would then have been lawfully dismissed or not.

1. In the present case, however, the ET returned to the point at paragraph 62 of its reasoning, concluding that it would not be appropriate to make any further award for continuing losses post-dating the Remedy Hearing given "the chance that she would have been lawfully dismissed on account of long term absence …". That identifies the lawful ground of dismissal the ET considered would have served to bring the Claimant's employment to an end. It is right that the ET spoke of "the chance" of such dismissal but that relates to the period from the expiration of the SSP entitlement to the date of the Remedy Hearing (when the ET had found the Claimant would have been on zero pay in any event); it is apparent that the ET had concluded that dismissal would have been a certainty by the time of the Remedy Hearing itself.

1. Given the length of time involved and the particular facts of this case, I cannot see how it could be said that the ET reached an other than a permissible conclusion in this regard and I further consider that its reasoning was adequate to the task. I therefore reject the ground of appeal under this head.

1. I have had regard to the guidance provided in Sinclair Roche & Temperley v Heard [2004] IRLR 763 EAT. Given that I have allowed the appeal on specific points, apparently overlooked by the ET, my preliminary view is that the appropriate and proportionate course is for these matters to be remitted to the same ET for reconsideration (so far as that remains practicable). Allowing, however, that the parties have not had the opportunity to address me on the question of disposal in the light of my Judgment, I direct that any representations to the contrary be made in writing within 14 days of the handing down of this Judgment.