Lawless v Print Plus

Under the statutory rules governing dispute resolution (repealed in April 2009), tribunals could increase an award if either side failed to comply with them. In Lawless v Print Plus, the Employment Appeal Tribunal (EAT) said that, when considering an uplift, tribunals had to consider whether the rules had been completely ignored, whether the failure to comply was deliberate and whether there were any mitigating circumstances.

Mr Lawless’s union, Unite the union, instructed Thompsons to act on his behalf.

Basic facts

Mr Lawless was made redundant by his employer, Print Plus, on 25 February 2008, without any prior consultation.

The sudden decision to make him redundant was partly prompted by the outcome of a tribunal case brought by a partner of the company, as a result of which Print Plus was going to have to pay out a substantial amount. However, the principal reason was that he was genuinely redundant.

Mr Lawless was not given any written confirmation of the decision to make him redundant, nor the amount he would be paid, until he received a letter dated 25 March 2008. He then took advice from his union official and wrote a letter dated 18 April lodging a grievance against the decision.

Print Plus wrote back on 24 April saying that their letter of 25 March explained everything and that he should “stop sending ... any more bullshit letters.”

Tribunal decision

A tribunal found that the dismissal was automatically unfair because Print Plus had not complied with the statutory dismissal and disciplinary procedure in force at the time.

It awarded Mr Lawless just over £9000. This was made up of a basic award, a compensatory award and a 10 per cent uplift in line with section 31(3) of the 2002 Employment Act.

Mr Lawless appealed against the amount of the uplift, arguing that the tribunal should have awarded the maximum available, because of his former employer’s complete failure to comply with the statutory procedure.

Relevant law

Section 31(3) of the Employment Act 2002 states that if it seems to the tribunal that the employer had failed to comply with the statutory procedures, it must “increase any award which it makes to the employee by 10 per cent and may, if it considers it just and equitable in all the circumstances to do so, increase it by a further amount, but not so as to make a total increase of more than 50 per cent.”

EAT decision

The EAT agreed with Mr Lawless, saying that the starting point for the tribunal “could only have been that an award at or near the top of the available scale was required”, given the “wholesale failure to apply any proper procedures, aggravated by the deliberate and somewhat offensively phrased refusal to conduct (in effect) an appeal contained in [the] letter of 24 April 2008”. It therefore awarded an uplift of 40 per cent.

It added that, when deciding on the size of the uplift in the event that an employer fails to follow a proper disciplinary procedure, tribunals must consider whether:

  • the procedures were ignored altogether or applied to some extent
  • the failure to comply with the procedures was deliberate or inadvertent
  • there are circumstances which may mitigate the blameworthiness of the failure

It also said that the size and resources of the employer would be relevant to the tribunal when exercising its discretion to the extent that it aggravates or mitigates the blameworthiness of the employer.