Carmelli Bakeries Limited v Mr T Benali UKEAT/0616/12/R
Emily Gibbs of ATLEU at Islington Law Centre and Harini Iyengar of 11KBW successfully represented Mr Benali in a response to the appeal brought by his employer, the kosher bakery Carmelli Bakeries Limited. Judgment was handed down today. Emmy represented the Claimant at the original liability and remedy hearings in June and October 2012.
The Employment Appeal Tribunal found that, although the Claimant had committed an act of gross misconduct entitling the Respondents to dismiss him without notice, the Tribunal was not perverse in concluding that the misconduct was not the principal reason for the dismissal and that the dismissal was therefore unfair.
Failures in the investigation, the disciplinary and appeal hearings supported the inference that the Claimant was treated less favourably than another employee who should have been “in the frame”, and that in the context of strong findings regarding the Respondent’s view of the Claimant’s disability and requests for adjustments it was open to the Tribunal to infer that the dismissal of the Claimant was an act of victimisation.
This was not a case in which no investigation was required because misconduct was admitted: an investigation should have been undertaken in relation to the circumstances surrounding the act of misconduct.
Because of the mandatory language of section 123(6) the Tribunal, having concluded that the misconduct contributed to dismissal, have considered of its own motion reduction for contributory fault under section 123(6) in relation to the compensatory award, though not under section 122(1) in relation to the basic award.
The matter should be remitted to the same Tribunal to consider contributory fault. However, having previously made no award for compensation for loss of earnings for victimisation on account of the award made for unfair dismissal, the EAT noted that if the amount awarded for compensation for unfair dismissal is reduced, the Tribunal may consider it necessary to adjust the award for victimisation such that the reduction would have little practical effect.