When considering what compensation to award following a successful unfair dismissal claim, the Employment Appeal Tribunal (EAT) has held in Unilever de Centroamerica SA de CV v Pirie that tribunals cannot make an award on the basis that a job was available for the claimant if the evidence did not support such a finding.
Basic facts
Ms Pirie worked for the Unilever group of companies from 1998 in a number of different locations around the world. Having been identified as a high-flyer, she was given an “International Assignment” contract based in the UK with a fixed term from 1 September 2013 to 31 August 2016.
Over the months leading up to the expiry of her fixed term post, various efforts were made to identify a role that she might move into at the end of it. In March of that year, she was told of some potentially suitable roles in Poland (known as BFS jobs) but was not told that they could also be done in the UK. This was because the company thought that she would not be able to get a visa that would allow her to move into a long-term position with the Group based in the UK.
She applied for some other roles but was ultimately not successful. After being dismissed when her fixed term role ended in August 2016, she brought a claim of unfair dismissal.
Tribunal decision
At the liability hearing, the tribunal concluded that the dismissal was unfair as there had been a potential BFS role available for Ms Pirie in the UK. She should, therefore, have been offered that option and the visa issue could have been discussed with her subsequently.
At the remedy hearing, to determine compensation, the company presented evidence that no actual BFS role had been available for her at the relevant time. However, the tribunal held that as it had determined at the earlier liability hearing that there was a job that she could have been offered, the company could not revisit that issue at the remedy stage.
The tribunal concluded that, had she been offered the option of doing a BFS job in the UK, Ms Pirie would have accepted it and there was a 50 per cent chance that the requisite visa would then have been obtained.
The company appealed, arguing firstly that the tribunal had not made a finding at the liability hearing that a BFS role was actually available for her in the UK; and secondly, that it was perverse to make that finding at the remedy stage, given that there was no evidence to support it.
EAT decision
Allowing the appeal, the EAT held that the tribunal had only made findings of fact about BFS roles being discussed with Ms Pirie in March 2016. At this point, they were described as “potential” roles for her and were not guaranteed.
Although the company had not produced any evidence at the liability hearing that she would not have been put into a BFS role, it was entitled to raise this contention at the remedy stage when the tribunal was considering what compensation to award. As evidence from both sides had been presented at this stage, the tribunal should have made findings about it.
The EAT therefore allowed the appeal and remitted the matter to the tribunal to decide two points. Firstly, it needed to consider whether Ms Pirie would have been placed into one of the potential BFS roles in the UK, had she indicated that she wanted to pursue that option. Secondly, it needed to decide, taking into account all its previous findings, what the compensatory award should be.