CAN A CLAIMANT’S POST TERMINATION CONDUCT AFFECT THEIR COMPENSATORY AWARD?

Yes- A recent case has highlighted that the conduct of a claimant, post termination, can reduce their compensation award following a successful unfair dismissal claim. We report on this case.

Facts
In Cumbria County Council v Bates, the Claimant, Mr Bates was a teacher who was unfairly dismissed by Cumbria County Council. Following his unfair dismissal Mr Bates faced a charge of common assault against one of his former female pupils. At the remedy stage of tribunal proceedings the Council requested an adjournment on the basis that Mr Bates’ conviction could substantially alter his future employment prospects including his future loss of earnings and pension loss.

Employment Tribunal decision
The Employment Tribunal (ET) refused this request stressing that post-dismissal conduct is irrelevant when assessing a claimant’s compensatory award. Mr Bates was therefore awarded over £70,000 in compensation, made up of both the basic and compensatory awards.

Appeal
Following the ET decision Mr Bates was convicted of common assault and was sentenced to six weeks’ imprisonment. The Council appealed the ET decision and the Employment Appeals Tribunal (EAT) held that the ET had erred in its approach. The EAT decided that Mr Bates’ subsequent conviction and prison sentence could affect his future employment prospects and therefore should have been taken into account during the ET’s assessment of the compensatory award.

The case was remitted to a new tribunal for consideration.

Practise points
This is great news for employers who find themselves coughing up for unfair dismissal claims. Although the basic award remains unaffected, this case confirms that post termination conduct will be considered by the tribunal when calculating a claimant’s compensatory award. This could potentially result in smaller awards which more accurately reflect the position of the parties.

Once notified of a claim, employers may now want to check social networking sites such as facebook and twitter in order to gather evidence of any post termination conduct that could ultimately be used to reduce the claimant’s compensatory award should their claim for unfair dismissal be successful.