In Keirle and others v Notaro Homes four employees were apparently dismissed for making certain social media posts that their employer found unacceptable. At a hearing a tribunal found that this was in fact not the real reason for their dismissal. The tribunal found that the true reason for their dismissal was that they had made protected disclosures and that their dismissal was therefore automatically unfair.
The Employment Tribunal made findings of fact that the Claimants had indeed made culpable and blameworthy social media posts. This conduct had contributed to or caused their dismissal. The Claimants did not appeal against these findings. Having however determined on the facts that the real reason for their dismissal was that they had made protected disclosures the tribunal held that the social media posts were simply a “cloak for the dismissals”. Their claims for automatically unfair dismissal succeeded.
When deciding on compensation, the tribunal decided not to reduce the compensatory award because the employees had contributed to their dismissal by making the social media posts. Their employer appealed this point saying that the tribunal must reduce compensation to account for their contributory conduct. The Employment Appeal Tribunal (EAT) rejected the appeal.
A finding of contributory conduct usually results in some reduction to the compensatory award, there is no legal requirement that there must be a reduction in every case. The tribunal could reduce the compensatory award by such proportion as is just and equitable (s123(6) Employment Rights Act 1996), but it could decide not to apply any reduction. The employer’s appeal failed.
Contributory conduct may reduce compensation but it is an option not a mandatory requirement.
The wording of section 123(6) of the Employment Rights Act 1996 states –
Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
This case illustrates that the tribunal may decide that no reduction is necessary at all.
This blog was written by Karen Jackson, Solicitor and MD at didlaw.
