EAT: conduct found only after dismissal cannot cut the compensatory award for contribution
The Employment Appeal Tribunal has held that conduct an employer discovered only after dismissing someone could not have caused or contributed to the dismissal, so it could not justify reducing the compensatory award on that basis. It may still be relevant to the basic award, which is tested differently.
What changed
An employer conceded that a dismissal was unfair because of procedural defects in a redeployment process. The employee had been on special paid leave and, unknown to the employer, had taken full time work with another charity. The employer learned of this only after the dismissal. At the remedies hearing the employment tribunal reduced both the basic and compensatory awards to nothing.
The EAT said that, because the employer discovered the other work only after the dismissal, that conduct could not have caused or contributed to it, and the tribunal erred in law in reducing the compensatory award on that basis. The basic award could have been reduced for conduct before the dismissal, even if unknown to the employer, but the tribunal drew no distinction between the two legal tests.
The EAT allowed the appeal, quashed the tribunal's judgment and, unless the parties reach agreement, sent the case to a differently constituted tribunal for a rehearing.
HRjoy’s view
Misconduct that comes to light after a dismissal can still matter, but not in every way an employer might hope. The two awards have different legal tests, and a tribunal has to work through each one. The safest position is a fair process in the first place, with a clear record of what was known and when.
The law
“any conduct of the complainant before the dismissal…”
“caused or contributed to by any action of the complainant…”
Source
General information for employers in Great Britain, not legal advice.
What to do
- When arguing for a reduced award, treat the basic award and the compensatory award as separate questions
- Record what you knew at the time of dismissal and when you learned of any later information
- Fix procedural defects in redeployment and probation processes before relying on them to dismiss
Related answers
- What can an employment tribunal claim cost an employer? It depends on the claim and the outcome. In Great Britain, unfair dismissal compensation is a basic award plus a compensatory award, currently capped for most claims at the lower of £123,543 or 52 weeks' pay. Discrimination compensation has no limit. Each side usually meets its own legal costs, but a tribunal can order costs in some cases. Claimants pay no fee.
- What is a fair disciplinary procedure? In Great Britain, a fair disciplinary procedure follows the Acas Code of Practice: investigate to establish the facts, tell the employee about the problem in writing, hold a meeting where they can respond, allow them to be accompanied, decide and confirm the outcome in writing, and offer an appeal.