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Chambers & Partners
23/04/2007

Ingram v. Bristol Street Parts

Uncategorized

Employment Appeal Tribunal

This case concerned an accounts clerk who was dismissed because sums of £300-£400 at a time were stolen from her drawer, but she did not tell her employers. On two or three occasions she even left more money, hoping to catch the thief, losing more money, but not catching the thief. She then engaged in fraudulent accounting practices over some months to conceal the fact of the thefts from her employers. She was dismissed for the fraudulent accounting.
The tribunal found that the dismissal was unfair for breach of step 2(2) of the statutory procedure, but ordered nil basic and compensatory awards, commenting that “if ever there was a case for a 100% reduction for contribution, this was it.”
The claimant appealed against the nil awards arguing that a nil award is not permitted where there is a finding of unfair dismissal under s.98A(1) ERA. The respondent cross-appealed against the finding of a s.98A unfair dismissal.
The EAT (Elias P) holds
(1) There was no automatic unfair dismissal for failure to follow statutory procedures, where some evidence was given to C either immediately before or during the disciplinary hearing. The basis for the allegation was given to the C. In holding that all the evidence had to be provided to C in advance of the hearings, the tribunal set the require¬ment under step 2 “far too high”. C fully understood the nature of the case against her. Alexander v Bridgen, YMCA v Stewart applied. Cross appeal upheld. (As C had not argued that this was an ordinary unfair dismissal, this meant there was no unfair dismissal.)
As to remedy, the EAT held in the alternative:
(2) The submission that parliament could not have intended there should ever be a nil award in cases of dismissal for breach of the statutory procedures was not accepted.
(3) it was not accepted that there must be some compensatory award because the employer was responsible for the dismissal being unfair. That will always be the case where there is a finding of unfair dismissal, but the House of Lords held in Devis v Atkins that there can be a 100% reduction for contributory conduct by the employee. The question is whether the employee’s conduct contributed to the dismissal, not whether it contributed to the unfairness of the dismissal. Sometimes procedural failings by the employer will be causally relevant to the dismissal itself, and in such cases a finding of 100% contributory fault is unjustified. But in this case it was plain beyond doubt that the blameworthy conduct of the employee was the sole factor resulting in the dismissal.
(4) The tribunal did err however in ordering a nil basic award without any minimum basic award under s.120 ERA. S.120(1A) provides for a minimum basic award to be calculated after any reduction for contribution, subject to s.120(1B). S.120(1A) does not make any provision for a reduction under s.122(2), whereas s.120(1) does. If Parliament had intended the minimum basic award to be subject to a reduction under s.122(2) it would have so provided within s.120(1A).
(5) It is open to a tribunal, under s.120(1B), to not increase the basic award “if it considers that the increase would result in injustice to the employer”; but the tribunal did not consider that provision. That was not covered by the finding of 100% contribution. Had it been necessary, this would have been remitted to the tribunal to consider whether to make any award in the light of s.120(1B).
(6) the claimant’s submission that tribunals are obliged to quantify the compensatory award under s.123(1) ERA before making any reduction under s.123(6), even where they proposed to make a 100% reduction for contribution, could not be accepted. That would be “a wholly futile exercise” where the tribunal concludes that there should be a 100% reduction for contribution.
(7) S.124A ERA specifies the order in which adjustments are to be made. Any uplift or reduction is to be made immediately before any reduction for contribution. Here the tribunal applied the 100% reduction before considering whether to make any uplift (in fact it did not do so, given the 100% reduction). However, this did not matter because the result, mathematically, is the same either way.
(8) The tribunal was entitled to make a nil compensatory award. Such a reduction is exceptional but is plainly permitted as Devis v Atkins makes clear. It could not be accepted that this was no longer good law in the context of automatic unfair dismissal for failure to follow statutory procedures.

UKEAT/0601/06
AUTOMATICALLY UNFAIR DISMISSAL, BASIC AWARDS, COMPENSATORY AWARDS, CONTRIBUTORY CONDUCT, DISMISSAL AND DISCIPLINARY PROCEDURE

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