Size of award assessed as at date of hearing

In Anyeetey v Tuntum Housing Association an employment tribunal found at a preliminary hearing on liability that the claimant had been unfairly dismissed for making ‘protected disclosures’ – that is to say ‘whistleblowing’ – raising issues concerning the chief executive of the organisation for which he worked.

The tribunal decided to adjourn to a second hearing to decide on the level of compensation, but indicated that whatever figure was decided on, there would be a reduction of 25% to allow for the fact that, given his communication problems with the chief executive and others generally, the likelihood was that the claimant would not have remained long in that employment in any event.

As it happened, before the second tribunal hearing took place, two audits had confirmed that the chief executive had been guilty of no wrongdoing but, regardless of these, the claimant had made a further complaint about him to the police.

When the tribunal reconvened, it was made aware of these developments. As a consequence it reconsidered the issue and decided that, at the point at which he made the police complaint, he could no longer be taken as acting ‘in good faith’ - his motive had become one of vendetta - and so he should not be compensated for loss of earnings at all beyond that point.

He argued that this was inconsistent with their earlier decision. However, the EAT has confirmed that tribunals must always assess compensation on the facts before them at the date of the hearing, and so there was nothing wrong with their final judgment.

Point to note –

  • When a tribunal assesses compensation in an unfair dismissal claim, it is required to consider all relevant matters. It must do so on the basis of evidence available to it at the hearing. This is so, even if circumstances have changed since the claim was filed or, as in this case, since the date of any preliminary hearing. It is therefore important to make sure that all relevant facts are put before the tribunal and that your case is properly presented. As can be seen in this case, it may have significant financial consequences.