Refusing tribunal orders

In the case of Duxbury v University of Huddersfield, the tribunal found that the claimant had been unfairly dismissed from his position as a senior lecturer.

It made an order for re-instatement and for full compensation for the claimant’s losses up to the date of re-instatement. This award went above the statutory cap which otherwise limits compensatory awards for unfair dismissal to a regulated set amount or, if lower, one year’s pay.

The respondent refused to re-instate. In so doing, it became liable to pay an additional award of between 26 and 52 weeks’ pay on top of any compensatory award. The tribunal ordered this to be paid and also kept in place their original compensatory sum (which was higher than the cap).

The Employment Appeal Tribunal held they were wrong to have done this. The complex legal provisions meant that it was only open to the tribunal to disapply the cap in these circumstances if the total of the compensatory award and the additional award for failure to re-instate came out as lower than the compensatory award, which would have been payable had re-instatement taken place. In this case, the total figure came out as higher so there was no ability to dis-apply the cap.

It is clearly sensible that an employer should not be rewarded for failure to re-instate by being required to pay a lower compensatory sum. However, what the tribunal had done in this case went beyond this. Having established that the respondent was going to have to pay the claimant more if it failed to re-instate, it could not then increase the sum payable by disapplying the statutory cap on the compensatory award.