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Effect of Post-dismissal Conduct

If you are unfortunate enough to have been involved in a workplace dispute, you may have found yourself in the employment tribunal. But have you ever considered how your conduct after leaving your job may after the tribunal’s decision? As set out below, the Employment Appeal Tribunal have recently ruled that your actions post-dismissal can affect the tribunal award you receive, even if those actions are totally unrelated to your employment dispute.

Unfair dismissal awards

As the name suggests, in cases of unfair dismissal, the employee must prove two elements: (i) that they were dismissed, and (ii) that the dismissal was unfair. Although you might think it would be obvious when an employee is dismissed and when they are not, it is often not so simple. For example, if an employee resigns, it may amount to a “forced resignation”.

Alternatively, what seems like a resignation may be a “constructive dismissal,” where the employer’s actions have made the employment relationship untenable. As for unfairness, a dismissal may be unfair for a multitude of substantive or procedural reasons.

If the tribunal concludes that an employee has been unfairly dismissed, it will move on to consider the award. The award will include a basic award, which is dependent upon the employee’s length of employment and salary, and the compensatory award.

The compensatory award seeks to put the employee in the position they would have been in had they not been unfairly dismissed. Therefore, it may include a claim for past and future loss of earnings, loss of pension, and other employment rights. In a recent unfair dismissal case, it was the award for loss of pension that was at issue.

Bates v Cumbria County Council

The employee, Mr Bates, was a religious studies teacher in a secondary school, and had been dismissed for misconduct. The incident was one of several conflicts between Mr Bates and the headmistress, such as the head requesting an occupational health report without his consent following a period of sick leave.

The disciplinary panel, comprised of four school governors, dismissed Mr Bates for accessing a dating website for 15 seconds during a class, as well as lack of lesson planning. However, the hearing also involved a number of other unfounded allegations. When Mr Bates sought to appeal the decision, the school failed to provide him with evidence of how other teachers had been treated previously in similar circumstances.

The employment tribunal ruled that Mr Bates had been unfairly dismissed, stating that the head had been “seeking to throw as much mud at [Mr Bates] as she could in the hope that some of this would stick." Although his award was reduced by 15% as a result of his own actions, Mr Bates was awarded £70,925, including a sum in lieu of the loss of his pension.

However, following the decision of the tribunal, Mr Bates was convicted for common assault and sentenced to six weeks’ imprisonment. In light of this, the local authority and the school appealed against the tribunal ruling. They argued that Mr Bates would have been dismissed when he received a criminal conviction and, therefore, he would not have suffered a sizeable loss of pension anyway. The Employment Appeal Tribunal agreed with the school, reducing the award.

If you would like advice about bringing or defending a claim for unfair dismissal, or any other area of employment law, please contact San Chima at This email address is being protected from spambots. You need JavaScript enabled to view it..

 
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