McManus Members: Mr McAllister Mr Kerr Mr Zaffir Hakim The Scottish Trades Union Congress v Represented by:- Mr Haria — 2019

This was a remedy hearing following the tribunal's earlier liability judgment, which had found unfair dismissal under section 98 of the Employment Rights Act 1996 and victimisation under section 27 of the Equality Act 2010. The tribunal was deciding compensation, an injury to feelings award, and whether any recommendation should be made. It found that no basic award was payable because the claimant had received a statutory redundancy payment.

On loss, the tribunal accepted that the claimant knew of the available vacancies within the respondent's organisation before his dismissal on 31 March 2015, but had decided not to apply for them. It found that he did not meet the essential requirements for the Director of Scottish Union Learning and Scottish Union Learning Funding and Policy Officer roles, but that he did meet the person specification for the Policy Assistant / Woman and Work post. The tribunal treated that post as the most likely alternative role the claimant would have been appointed to had proper consultation and discussion of vacancies taken place.

The tribunal limited the compensatory period to 30 October 2017, when the claimant's later employment with SAMH ended after an unsuccessful probation period for reasons unrelated to the respondent. It treated that later dismissal as a novus actus interveniens and did not accept a career-long pension loss. It then applied a 30% reduction for failure to mitigate, a 70% Polkey reduction to reflect the chance of the claimant being appointed to the Woman and Work post, and a further 10% reduction for contribution because the claimant had submitted the OWER funding application without authorisation and the tribunal found that its quality, content and timing contributed to the cessation of funding.

The resulting financial loss was £10,733.37, with interest of £2,146.68 added at 8%, making a compensatory award of £12,880.05. The tribunal also awarded £3,800 for injury to feelings, assessed in the lower Vento band as uprated, and made a recommendation that the respondent review its internal policies and procedures on consultation about potential redundancy when a fixed-term contract expires. It said there was no award for unfair dismissal separately because that would have duplicated the Equality Act compensation.