How does a Gibraltar Employment Tribunal decide a claim for Unfair Dismissal?
Chris Brunt is a Gibraltar employment lawyer a Barrister and Acting Solicitor who will consider all unfair dismissal cases on a “no win no fee” basis”.
The recent Gibraltar Employment Tribunal judgment in the case of Juan Carlos Rojas v Eden Botanics Limited is an example of the principles an employment tribunal takes into account when deciding if a claim for unfair dismissal is proved, as well as demonstrating the power the Tribunal has when finding in favour of the unfairly dismissed employee to reduce the financial award that they would have otherwise been awarded. The case also discusses the Tribunal’s approach when considering procedural fairness during the disciplinary process as well as contractual issues on notice pay.
The facts found by the Employment Tribunal in the Gibraltar case of Juan Carlos Rojas and Eden Botanics Limited can be found here. It is submitted that employers when undertaking disciplinaries should consider the issues and facts of this case and how the law was applied to come to its decision on why the employee was unfairly dismissed (what should the employer have done or not done) and how the employee’s behaviour contributed to a reduction in his award.
The Employment Tribunal in this case applied the law to the facts as it found them to be.
I have previously discussed the application of the Burchell test in a previous post on Unfair Dismissal in Gibraltar Misconduct Cases, and where the Employment Appeal Tribunal decided that when deciding if an employer had fairly or unfairly dismissed an employee following a disciplinary hearing it would take into account whether the employer satisfied the following considerations, that is to say,
- Did the employer reasonably believe that the employee was guilty of the misconduct?
- Did the employer have reasonable grounds for that belief?
- Did the employer arrive at that decision after conducting a reasonable investigation?
The so-called Burchell test (an Employment Appeal Tribunal [EAT] case) was later re-affirmed in the Court of Appeal in W. Weddel & Co Limited v Tepper (1980) ICR 286.
The Gibraltar Employment Tribunal then went on to consider the questions of ‘reasonableness’ that are discussed in my previous post, which is found in Iceland Frozen Foods v Jones
In Iceland Frozen Foods v Jones [1983] ICR 17 the Employment Appeals Tribunal (EAT) found:
- “That in applying the section an employment tribunal must consider the reasonableness of the employer’s conduct and not simply whether the employment tribunal considers the dismissal fair.
- in adjudicating the reasonableness of the employer’s conduct an employment tribunal must not substitute its decision as to what was the right course for the employer to adopt.
- In many cases though not all, there is a band of reasonable responses to employee conduct within which one employer might reasonably take one view and another might reasonably take another.
- The function of the employment tribunal as an employment jury is to determine whether in the particular circumstances of each case the decision to dismiss fell within the band of reasonable responses that a reasonable employer might have adopted. If the dismissal fell within the band the dismissal is fair – if it fell outside the band, it is unfair.“
The Gibraltar Employment Tribunal then went on to discuss ‘procedural fairness’, noting that ‘procedural fairness’, namely the manner in which the decision was made, is only relevant to the extent that it affects the fairness of the decision shown by the respondent for the dismissal” and which was a decision arrived at in the case of Polkey v AE Dayton Services Limited. (1988) AC 344, HL.
The Employment Tribunal noted that where a dismissal is found to be procedurally unfair a Polkey reduction can be applied to reduce the compensation award to nil on the ground that the respondent’s failure did not affect the outcome. (It is respectfully submitted however that the judgment in the case of Juan Carlos Rojas and Eden Botanics Limited contains a typographical error where it states ‘complainant’ instead of ‘respondent’).
In this case, the tribunal did not reduce the Basic Award to nil (however it was reduced).
The Employment Tribunal (Calculation of Compensation) Regulation 2016, Regulation 2(5) States: “Where the Employment Tribunal considers that any conduct of the employee before the dismissal (or, where the dismissal was with notice before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Employment Tribunal shall reduce or further reduce that amount accordingly.”
On the facts, as it found, the Employment Tribunal decided that the process to dismiss Mr Rojas was procedurally unfair. However, for factual reasons given in the Employment Tribunal’s judgment, it reduced Mr Rojas’s calculated Basic award by 75% (paragraph 78 of the judgment).
A financial award for unfair dismissal is made up of two components, that is to say, a Basic Award (where a statutory formula basic on salary and length of service and age of an employee is used to calculate the award). The second component is a Compensatory award, where the Regulation states:
“Subject to the provisions of the Regulation, the amount of the Compensatory award shall be such amount as the Employment Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer”.
The Employment Tribunal in paragraph 80 of the judgment then discusses the ways in which it calculated the compensatory loss, (which is the subject of a further post).
Despite a finding of unfair dismissal, and for the reasons provided in the judgment on the facts, and having regard to a just and equitable position, in particular, due to the claimant’s behaviour, as well as his mitigation of reducing his loss by re-employment elsewhere following dismissal, the Tribunal decided that the claimant’s compensatory loss should be nil.
Finally, the claimant claimed a breach of the employment contract in that he avered that he was entitled to more notice pay (following dismissal) than he was given. The Tribunal agreed with him. A later post will discuss contractual notice claims, often pleaded as ‘wrongful dismissal’ and not to be confused with ‘unfair dismissal’.
In Summary
The Gibraltar Employment Tribunal case of Juan Carlos Rojas v Eden Botanics Limited judgment is a good example of the multifaceted dynamics involved in an Employment Tribunal claim for unfair dismissal. It demonstrates how the tribunal approaches and decides the facts and applies them to the law, and if the employer had acted in a reasonably structured way when deciding to dismiss (or sack) the employee by applying the ‘Burchell test’.
It will then consider the legal test in ‘Iceland Frozen Foods’ as to whether the dismissal itself was within the band of reasonable responses.
Procedural unfairness and the ‘Polkey’ reduction. How just and equitable considerations play a role in deciding awards in unfair dismissal claims for successful claimants.
Also, how mitigation, or rather failure to mitigate, plays a role in reducing any compensatory award further.
Further, when dismissing an employee how can an employer avoid a successful contractual claim for wrongful dismissal?
Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in employment law.
Are you an employer who requires advice on reducing your business’s exposure to an unfair dismissal claim?
Or are you an employee who is facing a disciplinary meeting or who has been dismissed (sacked)?
Contact me for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA. Call me on 200 73900 or email me at chris.brunt@phillips.gi for advice to employers on reducing your business’ exposure to an unfair dismissal claim – Or, if you are an employee, to evaluate your prospects for a claim for unfair dismissal.
All employee cases are considered on a “no win no fee” basis
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site https://www.employmentlawgibraltar.com/
