The EAT held in Butler v GR Carr that when assessing an appropriate uplift in compensation in the range between 10% and 50% for an employer's failure to comply with the statutory dismissal procedure, the tribunal is not obliged to start at 50% and work downwards.
Mr Butler was dismissed by reason of redundancy. As his employer had failed to follow the statutory dismissal procedure, the tribunal held that his dismissal was automatically unfair. On the findings of fact, however, the tribunal held that had the correct procedure been followed Mr Butler would still have been dismissed and awarded a 30% uplift in the award for unfair dismissal to reflect the employer's non-compliance. Mr Butler appealed.
Mr Butler asserted that the correct approach was to start at 50% and work down. The EAT disagreed. Tribunals have an unfettered discretion when calculating the uplift to be applied. Here the tribunal had correctly considered the starting point as being a significant and serious breach of the statutory procedure and put the award in the top half of the range, ie between 30% and 50%. The tribunal then considered whether the breach was wilful or blatant. It found that the employer had not deliberately decided to ignore the statutory procedure and therefore decided the reduction should be set in the bottom end of the top half of the scale. The EAT held that the 30% uplift was not an error of law and dismissed Mr Butler's appeal.
Impact on employers
Employers should follow the statutory dismissal procedure where possible to avoid uplifts of this nature. Where a failure to follow procedure has occurred, the Tribunal will assess the seriousness of the breach