This is an interesting protected disclosure and dismissal case where employees breaches of social media policies, were found to contribute to dismissal. N Notaro Homes Ltd v 1) Miss C Keirle & Others: [2024] EAT 122 also highlights the employment tribunal's discretion when awarding damages taking into account contributory conduct.
Material Facts
The claimants were dismissed for making certain social media posts, which the tribunal found to be a pretext for dismissing them for having made protected disclosures.
The tribunal found that each claimant had committed culpable or blameworthy conduct by breaching the employer's social media policy, and that such conduct had contributed to their dismissals.
However, the tribunal decided that it was not just and equitable to reduce the compensatory awards on account of the contributory conduct.
The Law
Submissions of the Parties
The respondent appealed, contending that having found contributory conduct, the tribunal was obliged to make some reduction to the compensatory awards.
The respondent argued that the use of the word "shall" in section 123(6) meant that the tribunal must make a reduction, and that the word "proportion" necessarily implies an amount greater than zero.
The respondent submitted that previous cases such as Warrilow v Robert Walker Limited (para 25 to 30 judgment) and Parker Foundry Limited v Slack (paragraph 31 to 37 judgment) supported its interpretation.
The Ruling and Court Rationale
The EAT held that it was not bound by Warrilow or Slack on the point at issue, as the remarks in those cases were obiter (Obiter, or obiter dicta, refers to statements made by a judge in a legal opinion that are not essential to the decision of the case). It also disagreed with the interpretation of those cases in Whooley, which it considered to be mistaken.
The EAT found that the wording of section 123(6) did not compel a tribunal to make a reduction in every case where contributory conduct was found. The requirement to consider "such proportion as it considers just and equitable" allowed for the possibility of no reduction being made in an atypical case.
The EAT acknowledged that it would ordinarily be expected that a finding of contributory conduct would lead to some reduction, but this was an unusual case where the conduct only contributed to the dismissal by providing a pretext. In such circumstances, the tribunal was entitled to conclude that no reduction was just and equitable.
The Decision
The Employment Appeal Tribunal dismissed the respondent's appeal.
PW-LA are able to review and advise on tailored policies and procedures. We specialise in whistleblowing claims and act for both employers and employees.
Comments