Post termination conduct by an employee

Year Published: 2013

Can a Claimant’s behaviour, after the termination of employment, impact on a tribunal claim?

The simple answer is, yes it can.  This is confirmed in the recent case of Cumbria County Council v Bates where the Claimant’s conduct following the termination of his employment could affect the amount of compensation he was entitled to receive.


The Claimant was a teacher who had been dismissed from Dowdales School. In the Employment Tribunal he was found to have been unfairly dismissed. Over a year after his dismissal he assaulted a 16 year old girl, who was also his former pupil and he was subsequently sentenced to 6 weeks’ imprisonment.

Although the Claimant was found to have been unfairly dismissed, an application was made to adjourn the remedy hearing until the criminal proceedings had been completed as the outcome of these proceedings would have an effect on the amount of compensation the Claimant would be awarded.

The issue before the Employment Tribunal was whether they could consider the post dismissal behaviour when assessing compensation. The Tribunal believed that they could not, however following a successful appeal to the Employment Appeal Tribunal it was found that they should. The case has been returned to the Employment Tribunal to assess the appropriate level of compensation, if any.

How does this affect employers?

In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice.  In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.  A Claimant must demonstrate that they have taken all reasonable steps to mitigate their losses arising after the dismissal. Such as looking for alternative employment, acquiring new skills to re-enter the workplace and attending job interviews.

Compensation is a remedy intended to compensate the employee for losses arising as a result of the unfair dismissal including losses for the period that they were out of work or are reasonably expected to be out of work or earning less money than they previously were following the appointment to a new job.

In this case the Claimant was convicted of common assault and sentenced to 6 weeks’ imprisonment and as a result the Claimant was banned by the Teaching Agency from teaching for life.  This was a relevant consideration when assessing compensation.

A tribunal must therefore consider the losses arising as a result of the unfair dismissal in order to award the appropriate level of compensation and can take into account post dismissal acts, which in this case, have made it impossible for the employee to return to their chosen profession.

For further information on employment and HR issues, contact our Employment team.

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