1/ Dafiaghor-Olomu v Community Integrated Care: In a case where the statutory cap applies & compensation is paid pursuant to an ET order, no credit is given for that payment as against the statutory cap is compensation is then revised upwards.
#ukemplaw
#ukemplaw
2/ The above may sound confusing. The facts will make things simpler. D won her ordinary unfair dismissal claim & CIC was ordered to pay c.£46k in compensation. D then successfully appealed the remedy judgment & on remission the ET decided she was entitled to c.129k compensation.
3/ The relevant statutory cap at the time was £74,200. Should the £46k count against the cap (so that c.£28k remained owing on the remitted judgment) or should the £46k be taken off the £129k so that CIC now had to pay the statutory cap amount of £74,200?
4/ The EAT held that the latter was the correct application of s.124. S.124(5) requires the cap to be applied AFTER taking account of any payment made by R to C. Hence here the payment of the 1st remedy order should be taken account of before applying the statutory cap. 
5/ Instinctively this may seem unfair (at least once the unfairness to a claimant of a statutory cap below what they have actually lost is neutralised). The EAT expressed some sympathy with the respondent on this but was clear that it was the consequence of s.124(5)'s wording.
6/ Unless successfully appealed, it's surely likely to make employers more reticent to pay capped awards swiftly if there's a potential risk of the award being appealed/reviewed by the claimant with the corresponding risk of having to pay over the cap.
7/ The judgment also includes a pretty niche point about refusal of reconsideration where the EJ had refused to order re-engagement on the basis of D's unrealistic attitude to what jobs she was qualified for, refused to reconsider that decision & then refused a 2nd such app'n.
8/ At the time of the 2nd application, there was a vacancy for a potentially suitable job which D also accepted she was suitable for. However, the EJ was concerned by the extent of remedy proceedings, 2nd bites of the cherry & finality of litigation.
9/ The EJ was concerned that if unsuccessful on this 2nd appl'n, C could make a 3rd one when subsequent vacancies arose. The EAT was attracted by the finality of litigation argument, holding reconsideration shouldn't be used to change a party's position on a matter determined.
10/ The judgment is here: assets.publishing.service.gov.uk/media/62a07060…
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