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The Employment Appeal Tribunal (EAT) has ruled that a school caretaker, who was unfairly dismissed due to concerns about his allegedly inappropriate conduct towards pupils, wrongly had a cap placed on his compensation on the basis that he would have lost his job in any event (V v Hertfordshire County Council and Another).
The school's managers were anxious about certain incidents in which the caretaker had come into physical contact with pupils. However, following a police investigation, he was cleared of any form of sexual misbehaviour. Officers described him as a 'nice person' whose kindliness towards pupils had been misinterpreted. He was nevertheless dismissed following a subsequent disciplinary process.
An Employment Tribunal (ET) pinpointed numerous flaws in that process and found that the caretaker could not reasonably have been thought guilty of any misconduct. Furthermore, a woman would not have been treated in the same way as he was. His claims of unfair and wrongful dismissal and sex discrimination were therefore upheld.
He was awarded damages for the wrongs done to him. However, the ET capped his compensation in respect of future loss of earnings to four weeks' pay on the basis that, had the correct procedures been followed, he could have been fairly dismissed on grounds that he was not a suitable person to work with children.
In overturning the latter decision, the EAT found that the ET had engaged in excessive speculation about what might have happened in the future. In taking an 'all or nothing' approach to the issue, it had applied the wrong legal test. In those circumstances, the caretaker's appeal was allowed and the matter was sent back to the same ET for determination of the issues arising.