Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
There were four claimants who were all dismissed for breaches of the employer’s social media policy. The Tribunal concluded, though, that it was a pretext for their dismissals and that they had been dismissed for making protected disclosures. However, the Tribunal did recognise that the social media posts did amount to blameworthy conduct, and it did contribute towards the dismissals. The issue was the extent to which it could be considered when it came to the compensatory award.
Outcome:
At first instance, the Tribunal held that it would not be just and equitable to reduce the compensatory award based upon their conduct. The respondent argued that where there was a finding of blameworthy conduct then the Tribunal was obliged to make some reduction. The respondent also argued that the use of ‘proportion’ in the legislation meant that it had to be greater than zero and relative to the whole otherwise it was not a proportion at all. The EAT disagreed with this interpretation stating that there was nothing within the legislation that some particular significance should be given to the words ‘such proportion’. The EAT referred to the old legislation which stated it could be reduced ‘to such extent’ and that did give rise for the Tribunal to determine what was just and equitable. Accordingly, there are two parts:
- A trigger condition of conduct which contributed to the dismissal; and
- A just and equitable reduction to the amount.
Accordingly, when the first is met there is still a requirement for the second to be examined. In this case, when examining the second limb it was found that no reduction should be made on just and equitable grounds. Additionally, when it came to the word ‘shall’ in the legislation the EAT held that it was a requirement on the Tribunal to consider a reduction but not actually make a reduction. Accordingly, the appeal was dismissed.
Practical Guidance for Employers:
An interesting case looking at the construction of the legislation and the extent to which the Tribunal has flexibility in reducing a compensatory award based upon contributory fault. The key learning point is that even if there is a finding of blameworthiness linked to the dismissal on the claimant’s part, the Tribunal is not obliged to make a reduction but only to consider whether a reduction should be made.
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