Employment Tribunal Upholds Constructive Dismissal and Discrimination Claims

Introduction

The Employment Appeal Tribunal (EAT) has delivered its judgment in the case of Danny Duployen versus Whyte & Mackay Limited, ruling in favour of the appellant on claims of constructive dismissal and disability discrimination. The case, heard before the Honourable Lord Colbeck, was decided on 7 January 2025.

Background

Mr Danny Duployen was employed as a forklift truck and warehouse operator by Whyte & Mackay Limited from March 2017 until his employment was terminated in September 2021. Following the termination, Mr Duployen brought claims against his employer, alleging constructive dismissal and disability discrimination.

Initial Tribunal Findings

The initial tribunal, following hearings in Glasgow, upheld Mr Duployen's claims, finding that he was constructively dismissed and subjected to disability discrimination. The tribunal awarded him both a basic and a compensatory award. A subsequent reconsideration judgment made minor revisions but confirmed the initial findings.

Grounds of Appeal

Mr Duployen appealed the tribunal's decision on five grounds: the failure to order reinstatement or re-engagement, the assessment of the award for injury to feelings, the approach to mitigation of loss, and the failure to consider adding interest to the awards.

Reinstatement and Re-engagement

The EAT considered the appellant's argument that the tribunal erred in not ordering reinstatement, interpreting 'reasonably practicable' incorrectly. The tribunal had concluded that reinstatement was not feasible due to a breakdown in the relationship between Mr Duployen and his managers. The EAT upheld this decision, finding no error in the tribunal's interpretation of the law.

On the issue of re-engagement, the EAT noted that the tribunal did not address this in its judgment, as it was not sought by the appellant. The tribunal's decision not to consider re-engagement was upheld, as it was consistent with the evidence presented.

Injury to Feelings

The tribunal awarded Mr Duployen £7,500 for injury to feelings, placing the case in the lower band of the Vento guidelines. Mr Duployen argued this was an error, but the EAT found that the tribunal's assessment was within its discretion and not perverse.

Mitigation of Loss

The tribunal found that Mr Duployen failed to adequately mitigate his loss, having made only a few attempts to find alternative employment. The EAT upheld this finding, noting that the tribunal's decision was based on the evidence presented.

Interest on Awards

The EAT agreed with Mr Duployen's argument that the tribunal erred by not considering interest on the awards. The EAT varied the judgment to include interest from the mid-point between the first discriminatory act and the tribunal's judgment date.

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