Contributory fault in unfair dismissal cases
When a tribunal looks at the question of remedy (i.e. how much?) in an unfair dismissal case, one of the elements they must consider is whether there has been any contributory fault by the ex-employee: has the claimant, by their conduct, contributed to their dismissal. If a tribunal finds that they have, then this can lead to a reduction being applied to any award. In extreme cases the tribunal can even reduce compensation by 100% to take account of the claimant’s contribution to their own dismissal (even though they have found it to have been unfair).
In Topps Tiles v Hardy, the Employment Appeal Tribunal was asked to review the approach that the Employment tribunal had taken to the concept of contributory fault. The Claimant had been dismissed for gross misconduct after shouting at a customer and allowing some drink to be spilled on them. The tribunal found that his behaviour arose from his disability and that his dismissal was unfair. It stated in its judgment on liability that the Claimant hadn’t contributed to his dismissal “because we do not agree that a reasonable employer would treat the Claimant’s handling of the episode, faulty though it was, as an act of gross misconduct”.
The EAT stated that, when assessing contribution, there is a 3-stage test:
- Is there any blameworthy conduct by the claimant?
- Did it contribute to dismissal?
- If so, how much should the compensatory award be reduced by on a just and equitable basis?
Applying this test, the EAT decided that the tribunal had fallen into error. They had found culpable or blameworthy conduct (referring to the claimant’s conduct as “faulty”) but then came to the wrong conclusion on whether that conduct contributed to his dismissal. The tribunal had wrongly focused on the fact that the dismissal had been found to be unfair and, in error, concluded that this meant that the Claimant’s conduct had not contributed to it. The Claimant’s conduct obviously contributed to his dismissal. In fact, it was the whole reason for it. The tribunal had applied the wrong test.