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Conduct after dismissal relevant to compensation

Posted by TonyBrownEmploymentSolicitor on August 12, 2013

The Claimant, a teacher, was unfairly dismissed for misconduct (for accessing a dating website during lessons).

After his dismissal, the Claimant was convicted of common assault on a 16-year-old girl who was his former pupil and sentenced to six weeks' imprisonment. He was subsequently banned from teaching.

The school argued that the tribunal should have had regard to that conviction when assessing the compensatory award. The ET’s view was that, as the conviction for assault related to an incident occurring after dismissal, it was not relevant to what was just and equitable to award the Claimant as compensation for his unfair dismissal. This was because the tribunal was concerned with events which existed during and not subsequent to the termination of employment.

The EAT allowed the school’s appeal. The conviction was plainly relevant to the school’s argument that the compensation award should be reduced to reflect the fact that the Claimant would have been dismissed at a later date and this would substantially reduce the Claimant’s compensation for unfair dismissal.

Comment

S123 (1) ERA provides that the amount of compensatory award should just and equitable in all of the circumstances. In 1994, the EAT ruled that conduct occurring after dismissal was not relevant to the assessment of compensation because S123 (1) looked at events which existed during and not subsequent to the termination of employment. However, in this case, the ET was wrong to ignore the Claimant’s conviction because the school was not arguing for a reduction in the Claimant's compensation because of misconduct occurring after the dismissal; its argument was that the compensation award should be reduced to reflect the fact that the Claimant’s employment would not have continued because of his conviction.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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