The dangers of failing to follow the statutory dismissal procedures have been highlighted in a recent EAT case. In Metrobus Limited v Mr A L Cook the court considered the argument that when a Respondent admits the Claimant’s dismissal was automatically unfair, for failure to follow the statutory dismissal procedures, and the Tribunal makes such a finding, the Tribunal should still go on to consider whether the dismissal was unfair in the ordinary sense and give reasons for its decision. In this case, the Respondent’s breaches of the statutory procedure led the Tribunal to Order a 40% uplift on the compensation payable to the Claimant, which is a significant uplift and well beyond the 10% minimum for such failures. The failure to follow the statutory procedures constituted an automatically unfair dismissal in itself, and there was no need for the Tribunal to consider the unfair dismissal claim further.
The EAT upheld the Tribunal’s original decisions and held that a Tribunal is not required to separately consider the ordinary unfair dismissal, once a finding of automatic unfair dismissal has been reached on the basis of such an admission. The EAT found that this is a “complete answer” and no further reasons are required. If the matter had been disputed, or, if it was argued that the dismissal was automatically unfair for a reason other than a breach of the procedures (such as whistleblowing, or raising health and safety issues, for example) then it would be useful for the Tribunal to decide on both aspects of unfairness.
As to the 40% uplift in compensation, the EAT found that it was open to the Tribunal to make such an Order, as it was between the range of 10% to 50% prescribed by the Regulations. Further, it was noted that the uplift should be “more penal than compensatory in nature”, that is, to punish the Respondent’s failings, rather than compensate the Claimant. The EAT repeated this finding of the Tribunal in its judgment:
We take the view that the Respondent’s initial failure to comply with Step 1 of the procedures results in an inevitable finding that the non-completion of the procedure is attributable to the Respondent, and the Claimant is potentially entitled to an increase in any relevant award which may be made of at least 10%. We took the view that the Respondent’s failures in complying with the statutory procedure were serious. The Respondent, in its own right, is a large employer with substantial resources. The requirements imposed by the 2004 Regulations had been in place for a considerable period before the events with which we are concerned. The requirements are not complex. They are designed to ensure minimum standards of natural justice. The provisions are more penal than compensatory in nature. In our view, the Respondent’s breaches of these provisions make it just and equitable to make a further uplift of 30%, so as to increase any relevant award to the Claimant by a total of 40%.” It is worth noting that the EAT found the Tribunal’s decision to be “a model of clear findings, reasoning and application of the law to the circumstances”. There is no guidance available to Tribunals in deciding on the level of additional compensation within the 10% to 50% range, which is surprising, but this case is likely to be the subject of future discussion on the point.