EAT UNFAIR DISMISSAL – Compensation
When an employee has been unfairly dismissed and/or discriminated against unlawfully by being dismissed and it is alleged by the employer it has been discovered since the dismissal that s/he had been guilty of gross misconduct during the employment, the Employment Tribunal does not have to find as a fact that the employee had committed the misconduct and in the instant appeal there was no error on the part of the Employment Tribunal by not doing so. In such circumstances the Employment Tribunal must consider whether the employee would have been dismissed by reason of the alleged misconduct, and, if so, when. Then it must consider whether such a dismissal would have been fair, adopting the approach suggested by the Court of Appeal in Panama v London Borough of Hackney [2003] IRLR 278. This was what the Employment Tribunal had done and, there being no misdirection, no inadequacy of reasoning and no perversity, the Claimant’s appeal would be dismissed. In reaching that conclusion the Employment Appeal Tribunal also considered O’Dea v ISC Chemicals Ltd [1996] ICR 222, King and others v Eaton [No. 2] [1998] IRLR 686, O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615, Gover v Propertycare Ltd [2006] ICR 1073, Thornett v Scope [2007] ICR 236 and Software 2000 Ltd v Andrews and others [2007] ICR 825.
It was not open to the Respondent to appeal the liability judgment through the medium of an appeal against the remedies judgment but if it was the appeal would have been dismissed.
Credit Agricole Corporate and Investment Bank v Wardle [2011] IRLR 604 and Software 2000 Ltd v Andrews and others do not preclude an Employment Tribunal from making an award on a percentage basis where the Employment Tribunal think it is more than 50% likely that the dismissal would have been fair.
Hand QC J
[2013] UKEAT 0222 – 12 – 2606
Bailii
England and Wales
Employment, Damages
Updated: 15 November 2021; Ref: scu.512149
