Hello everyone, and thank you for joining me for another Case of the Week update. My name is Kyle, and I am one of the solicitors here at PJH Law.

For those that missed our newsletter, you can find that here. If you haven’t read it yet, go back and read it it’s great I wrote it, we had an exciting announcement from Yoga HR, changes to how the national minimum wage is calculated, and a new protected characteristic! This week, we are looking at some employees who were dismissed for their social media posts!

Today, we’re examining the case of Notaro Homes Ltd v Keirle & Others, which revolves around the issue of contributory fault.

The claimants, five litigants in person from various roles, were dismissed by the respondent, a nursing home provider, for making social media posts that violated the respondent’s social media policy. However, the claimants argued that the genuine reason for their dismissal came after they made protected disclosures. They claimed automatic unfair dismissal.

The Employment Tribunal found that the primary reason for the dismissal was indeed the protected disclosures made by the claimants—though it should be noted that one claimant’s case was dismissed at the first instance. While the judgment doesn’t detail the content of the social media posts or the protected disclosures, the Tribunal did find that these posts influenced the respondent’s decision to dismiss the claimants.

When considering whether to reduce the compensatory award due to contributory fault, the Tribunal evaluated if it was just and equitable to do so. In this case, despite acknowledging that the posts contributed to the dismissal decision, the Tribunal decided it was not just and equitable to reduce the award. Thus, they exercised their discretion and did not reduce the amount awarded. The respondent subsequently appealed this decision.

In their appeal, the respondent largely focused on the wording of previous case law and comparisons to other legislation. They argued that under section 123 of the Employment Rights Act 1996, the Tribunal is provided with discretion on reducing awards and sought to clarify this by referencing other legislative provisions, like section 38 of the Employment Act 2002 and section 207A of TULRCA 1992, which outline when reductions or increases in awards are permissible.

However, the Employment Appeal Tribunal (EAT) dismissed the appeal, emphasizing the Tribunal’s discretion in these matters. The EAT made it clear that a finding of contributory fault does not automatically mandate a reduction in the compensatory award.

Takeaway Points

This case underscores the importance of Tribunal discretion when deciding whether to reduce an award on a just and equitable basis.

Although a finding of contributory fault often leads to a reduced award, it is not a given unless it is deemed just and equitable to do so.