Mr Gobbato v Respondent — 2021

This was the remedy judgment following the Tribunal’s earlier liability decision of 2 December 2020, which had already upheld unfair dismissal, unlawful deduction from wages, and failure to pay accrued holiday entitlement. At the start of the remedy hearing, the Tribunal allowed the Respondent to rely only on evidence about a March 2020 redundancy exercise and an April 2020 commission issue; it did not permit relitigation of the company-vehicle damage issue because that had already been determined.

The Tribunal adopted its earlier findings and made further findings that, during employment, the Claimant was paid basic pay plus commission and had a company car; after dismissal he had temporary employment until April 2020; and he did not look for non-sales roles. It accepted that the Respondent had considered a redundancy-type process in March 2020 because of pandemic-related trading conditions, but it did not accept that this meant the Claimant would inevitably have been dismissed in that exercise. It also rejected the Respondent’s case that commission participation had been removed by a contractual variation in April 2020, noting that the Respondent was still using commission to recruit in September 2020.

On mitigation, the Tribunal held that the Respondent had not shown that the Claimant failed to mitigate his loss by not applying outside sales. Applying section 123 of the Employment Rights Act 1996 and the earlier Polkey and contribution findings, the Tribunal assessed the Claimant’s weekly pay at £871 gross and £663.08 net, fixed the basic award at £2,178.90, awarded £450 for loss of statutory rights and £4,000 for loss of the company vehicle, and concluded that the recoverable loss period was 20 months. It recorded that the recoupment regulations applied, with a prescribed period from 11 November 2019 to 26 March 2021 and a prescribed amount of £24,322.83.

After the parties adjourned to agree the arithmetic, the Tribunal entered judgment for total compensation of £35,414 for unfair dismissal, £1,834.10 for unlawful deduction from wages, and £944.66 for accrued holiday pay. It made no award of interest.