Unfairly dismissed forklift driver awarded interest on claim by EAT but loses appeal against refusal to order reinstatement

About this case:

• Citation:
  [2025] EAT 3
• Judgment:
  External link
• Court:
  Employment Appeal Tribunal
• Judge:
  Lord Colbeck

Danny Duployen obtained orders against Whyte & Mackay Ltd for a basic award and a compensatory award after the tribunal found in his favour on the issues of constructive dismissal and disability discrimination. However, he appealed on the grounds that the tribunal erred in not ordering his reinstatement or failing that in assessing the awards at the level it did.

The appeal was heard by Lord Colbeck of the Employment Appeal Tribunal, with the appellant appearing in person and Kerry Norval appearing for the respondent.

Reasonably practicable

The appellant was employed by the respondent as a forklift truck/warehouse operator from 20 March 2017 until the termination of his employment on 29 September 2021. During his evidence, the appellant was critical of way in which his line managers had treated him, describing one as unhelpful and unpleasant and saying that they made him feel as though he was a nuisance.

The tribunal accepted a submission by the respondent that reinstatement should not be ordered on the basis that the relationship between the parties had clearly broken down. However, it also held that the appellant had suffered embarrassment, humiliation and distress as a consequence of discriminatory treatment by the respondent, which impacted on his mental health and his relationship with his wife.

In relation to the issue of re-instatement, the appellant argued that the tribunal misapplied the law in reading ‘reasonably practicable’ as meaning ‘reasonable’ whereas it should have determined it as meaning ‘possible’. He also argued that the tribunal failed to take into consideration a material factor, namely, that the appellant had made it clear that he would put the dispute behind him and get on well with his manager if re-instated.

For the respondent it was argued that the appellant’s interpretation of the applicable statutory provision was without foundation. The tribunal had carefully considered the evidence before it and reached a conclusion it was entitled to reach in the circumstances. In respect of compensation, the tribunal had formed the view that the case was a less serious one in terms of the guidelines set out in Vento v Chief Constable of West Yorkshire Police (2003), and it was not open for the EAT to interfere with its conclusion simply because it would have reached a different conclusion.

No more than disagreement

In his decision, Lord Colbeck said of the appellant’s first argument: “The appellant’s argument that the tribunal misapplied the law in reading ‘reasonably practicable’ as meaning ‘reasonable’ whereas it should have determined it as meaning ‘possible’ is misconceived, As explained by Lady Smith in Asda Stores Ltd v Kauser (2007, unreported) it is not simply a matter of looking at what was possible but of asking whether, on the facts of the case as found, it was reasonable to expect that which was possible to have been done.”

He continued: “The conclusion reached by the tribunal on the issue of reinstatement was to the effect that, on the facts found, whilst reinstatement was ‘possible’ it was not reasonable to expect it to be ordered.”

Noting that the tribunal found that the appellant had failed to mitigate his loss following his dismissal, Lord Colbeck said: “The appellant argued that the tribunal erred in law in failing to follow the established principles of assessing what steps were reasonable, and whether the appellant would have actually mitigated his loss had he taken such steps, in that there was no such assessment at all. The appellant contended that but for the foregoing errors, the tribunal ought to have concluded that the appellant should have been awarded compensation for loss of wages for two years, as he had claimed.”

However, he went on to say: “The facts upon which the tribunal reached its decision in this regard are not disputed by the appellant. It cannot be said that the conclusion was a perverse one. The tribunal had regard to the relevant facts and reached a decision which was open to it. The ground of appeal appears to amount to no more than a disagreement with the decision of the tribunal.”

In respect of the final ground of appeal, that the tribunal erred in not adding interest to the awards, Lord Colbeck concluded: “In the hearing of the appeal, the respondent conceded that the tribunal should have made such awards of interest, from the mid-point between the first discriminatory act (inviting the appellant to a disciplinary hearing on 9 July 2021) and the date of the tribunal’s judgment. The appellant took no issue with this.”

The judgment of the tribunal was therefore varied to the extent of awarding interest at a rate of 8% per annum in respect of both awards, with all other grounds of appeal refused.