Tribunal Awards Maximum 50% Uplift On Damages – Bells Solicitors

On the 10th February 2009, Employment Law Partner, Dermot Burke, attended the Central London Employment Tribunal and was successful in obtaining a damages award for their client, Mr Smith (real name with-held) again his former employer, Konica-Minolta Business Solutions (UK) Limited.  However, the important aspect of the case is that Employment Judge, Miss A M Lewzey, accepted Dermot’s arguments under section 31 of the Emploument Act 2002 that the sdamages award should be increased by the maximum 50% in view of Konica-Minolta’s failure to apply property disciplinary procedure when deciding to dismiss.  Dermot comments:

“This was a particularly unfair dismissal, amounting to breach of contract.  Mr Smith suffered a bereavement and was signed off work by his docutor with stress.  Initially his manager (who worked ina  different office) was sympathetic and told him to take as much off as he wanted.  However, after only two weeks he began to apply pressure on Mr Smith to return to work.  Mr Smith dis so, but his return to work conincided with his manager’s summer holiday.  When his manger returned from holiday he formed the view, quite wrongly, that Mr Smith was still absent from work.  Without investigating the posuition he sent Mr Smith a letter dismissing him without notice for gross misconduct, alleging unauthorised absence.  Mr Smith appealed the decision but was refused a hearing – he simply received another letter from a more senior manager, confirming the decision to dismiss.  Although the company has a documented disciplinary procedure, it was not implemented.

“It is very difficult to get an uplift on damages of more than 20%.  A Tribunal must award 10% extra if it finds that the standard statutory dismissal procedure has not been implemented but thereafter it is a matter of discretion.  The Employment Tribunals have been very reluctant to apply section 31 to its limit, which his a 50% uplift, but on this particular occasion the conduct of the employer was poor and I thought the judge might be willing to go out on a limb, and so it proved”

The standard dismissal and disciplinary procedure (SDDP) has been something of a disaster since it was introduced by the government in October 2004.  It is going to be repealed in April 2009, to be replaced by th a voluntary code drafted by ACAS.  In effect, the clock is being turned back to pre -2004 regime although there will still be a procedure for applying uplift in the absence of a fair procedure not being followed.  However, the maximum uplift will be 25%.