An employee who is found to have been unfairly dismissed can usually expect to be awarded compensation at an Employment Tribunal. However, there may be circumstances where if the dismissal is found to be unfair due to procedural failings only the amount of compensation may be reduced to take into account what would have happened had a fair procedure been followed and to reflect the employee’s contributory conduct. In Brown v Castlerock Group Ltd the question was whether that should result in a 100 per cent reduction so that zero compensation would be awarded.
Ms Brown, a carer, had been accused of making unauthorised cash withdrawals using a bank card belonging to one of her vulnerable and elderly home clients. Following a police investigation she was invited to attend a disciplinary hearing which had to be adjourned due to her chosen companion being inappropriate. A second hearing went ahead in her absence despite requests for a further delay and she was summarily dismissed. She denied the allegations and claimed unfair dismissal.
It was held that she should have been given the opportunity to make representations at the second hearing. Refusing her request for a short adjournment together with other procedural failings had led to the conclusion the dismissal was procedurally unfair. However as there was “overwhelming” evidence that she had been guilty of the offences it was held it was inevitable that she would have been dismissed had a fair procedure been followed. It was concluded that no compensation should be awarded in those circumstances.
A reduction in compensation will generally be expressed in the percentage chance that dismissal would have followed. Usually there will be some element of uncertainty as to whether the employee would be dismissed as the benefit of the doubt may have been given to the employee so that a 100 per cent reduction is rare. However as this case shows it is possible. Her claim in respect of wrongful dismissal also failed as the finding that she had committed the offences meant that they had been guilty of gross misconduct.