Unfair dismissal: Evidence discovered after dismissal

For the first time since its enactment in 1971, the law relating to unfair dismissal has been considered by the House of Lords, the highest judicial authority in the land. In the case of Devis & Sons v Atkins, their Lordships rule that:

• whether a dismissal is unfair must be judged according to the facts which the employer knew or should have known at the time the decision to dismiss was taken;
• evidence which comes to light after the dismissal is not admissible in determining whether the dismissal is fair or unfair;
• subsequently discovered misconduct can be taken into account in assessing the compensatory award portion of unfair dismissal compensation;
• subsequently discovered misconduct, however, cannot lead to the basic award being reduced;
• the overriding criterion for assessing the compensatory award is what is "just and equitable";
• an Industrial Tribunal is entitled to award nominal or nil compensation.