The Employment Appeal Tribunal (EAT) has held in Notaro Homes Ltd v Keirle and others that a tribunal is not required to make a reduction to the compensatory award in an unfair dismissal claim following a finding of contributory fault.
The claimants were dismissed purportedly for breaches of Notaro Homes Ltd's (Notaro's) social media policy. They brought employment tribunal claims alleging that they had been unfairly dismissed for making protected disclosures. The tribunal found that the claimants had made culpable and blameworthy social media posts, but that the real reason for their dismissal was that they had made protected disclosures. The social media posts were just the "cloak for the dismissal" and so they had been unfairly dismissed.
Notaro appealed the remedy decision, arguing that the award should be reduced on the basis that there had been contributory conduct on the part of the claimants which led to the dismissal.
The EAT dismissed the appeal. It held that there was nothing within the statutory wording to compel the tribunal to make a reduction. Section 123(6) of the Employment Rights Act 1996 provides that if the dismissal is caused or contributed to by the claimant "it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding". The word "shall" means that, once there is a finding of culpable or blameworthy conduct which caused or contributed to the dismissal, the tribunal is obliged to consider the question of reduction. It is open to a tribunal to decide that no reduction at all is just and equitable, though the EAT conceded that it would be an atypical case,
Take note: Where there is a finding of contributory fault the tribunal must consider whether to reduce the compensatory award although it will be an unusual case where it decides that no reduction is due.
