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Ask the expert: Likelihood of compensation payout


Ask the expertAn employee has issued his employers with tribunal papers for unfair dismissal, yet the employers believe they followed correct procedures. Esther Smith and Martin Brewer advise on whether they will be hit with a large compensation payout.

The question:

We have an ongoing situation with a former employee. The person in question has now issued us with tribunal papers for unfair dismissal; reasons stated are: “We did not give reasons for the dismissal, we refused to set up a grievance meeting that they asked for, and we did not follow proper procedure”.

We gave this person, in writing, dismissal reasons, we arranged a grievance meeting that they could not attend, so we arranged another date that they could not attend, and then refused to attend any meetings whatsoever.

We believe we did follow the correct procedure, but maybe not in the right order, however it has now come to light that the qualifications this person put on their CV are totally bogus and we have been given proof in writing from the college alleging to this. My question is, based on the information above, can we look forward to being hit with a large compensation payout to them? We would have sacked them anyway once this qualification issue came to light.

Legal advice:

Esther Smith, partner, Thomas Eggar

The tribunal will assess the fairness of this employee’s dismissal (assuming their claim to the tribunal is for unfair dismissal) on the basis of the facts and information available to the employer at the time of the dismissal.

Therefore if you have messed up on the procedures and / or the substantive dismissal the tribunal will assess this issue irrespective of the information that came to light later regarding the qualifications.

However, if the defect is purely procedural you should have a good argument that the compensation flowing from that breach of procedure be limited to the time that it would have taken to comply with the procedure properly (i.e. a couple of weeks’ pay) or that the breach of the procedure did not in itself affect the dismissal and not award any compensation (although a basic award may still be due).

However, if the tribunal finds that the dismissal was substantively unfair and looks to award compensation flowing from the dismissal itself, then the evidence you have regarding the employee’s dishonest representation of his qualifications may limit the period for which compensation is awarded, if you can persuade the tribunal that had he not been unfairly dismissed for whatever reason you dismissed him, he would have been dismissed within a month, or however long it was before you discovered the dishonesty, then compensation may be limited to this period.

However, if there has been a breach of the statutory procedures you may still find that the tribunal up lift the compensation awarded by between 10 and 50% to take account of the breach of the procedures.

As you can see, this is far from straightforward, and the arguments may be quite legal, so if you are not already seeking advice on this tribunal claim, I strongly recommend that you do so soon!

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner, Mills & Reeve

In truth there’s not enough information to answer this question in any detail. What I can say is that in unfair dismissal cases the tribunal cannot forgive faults in breach of the statutory dismissal procedure.

However, even then they can find that the employee’s faults mean that he should not get full, or in some cases, any compensation. If you have followed the statutory procedure then you must still have a potentially fair reason for dismissal and have acted reasonably in all the circumstances in reaching the decision to dismiss.

Your information about the CV should be mentioned during any proceedings. If you didn’t know about this when you dismissed then the information is not relevant to whether the dismissal is unfair, but it can go to credibility and remedy, should you lose.

One other thing to note is that if the employee was in default in not allowing you to complete the grievance process that too should be brought to the tribunal’s attention.

You ought to seek representation for this ET claim as, although it’s not the most complicated, it does seem to raise one or two issues out of the ordinary.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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