Whyte & Mackay Face Tribunal Appeal Over Constructive Dismissal and Disability Discrimination
The Employment Appeal Tribunal has reviewed a case between Danny Duployen and Whyte & Mackay Ltd concerning constructive dismissal and disability discrimination.
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Forklift Operator's Claims Reviewed by EAT
The Employment Appeal Tribunal (EAT) has considered an appeal by Mr. Danny Duployen against a previous Employment Tribunal decision involving Whyte & Mackay Limited. Mr. Duployen, a former forklift truck and warehouse operator, had initially brought claims of constructive dismissal and disability discrimination against his former employer.
Original Tribunal Findings
The original Employment Tribunal in Glasgow had upheld Mr. Duployen's claims, finding that he was constructively dismissed and had experienced disability discrimination. The tribunal awarded both a basic and a compensatory award.
Grounds for Appeal
Mr. Duployen appealed the tribunal's decision on five grounds, arguing that the tribunal erred by:
- Not ordering reinstatement or re-engagement.
- Assessing the injury to feelings award at the lower band.
- Its approach to mitigation of loss.
- Failing to consider adding interest to the awards for injury to feelings and financial loss due to discrimination.
Re-instatement and Re-engagement Orders Debated
The EAT upheld the original tribunal's decision not to order re-instatement, stating that the relationship between Mr Duployen and Whyte & Mackay had broken down irretrievably. The tribunal originally chose not to consider re-engagement, however, the EAT identified an error in law for not giving this due consideration.
The EAT found that though the tribunal had erred by initially failing to consider re-engagement, the error was remedied upon reconsideration, and the decision not to order re-engagement was sound.
Injury to Feelings Award Upheld
The EAT supported the Employment Tribunal’s assessment of £7,500 for injury to feelings, placing it within the lower band as defined by the Vento guidelines. The appellant argued for a middle-band award, however, the EAT found no legal error in the original tribunal's assessment.
Mitigation of Loss Judgement Stands
The EAT supported the Employment Tribunal’s stance that Mr. Duployen had not adequately mitigated his losses, agreeing that he had only made 5 job applications in 9 months. His claim for 2 years of losses was dismissed in light of this failure.
Interest Awarded
The EAT agreed that the Employment Tribunal should have considered adding interest to the awards for injury to feelings and financial loss. It ordered that interest be calculated from 14 February 2022 (the midpoint between the first discriminatory act and the date of the Tribunal’s judgment) at a rate of 8% per annum.
Conclusion
Ultimately, the EAT varied the original judgment only to include interest on the injury to feelings and financial loss awards. The appeals regarding reinstatement, re-engagement, injury to feelings assessment, and mitigation of loss were dismissed.
Read the entire judgement here: Danny Duployen v Whyte & Mackay Ltd [2025] EAT 3
