Contributory Fault – Can’t blame the employer for everything!

Following success at a tribunal most Claimant’s will be awarded a basic and a compensatory award. What employee’s need to be aware of is that their conduct prior to their dismissal might impact on any final award that is given in their favour.

The reductions to both the basic award and compensatory award due to the Claimant’s own contribution are enshrined in statute in s.122(2) Employment Rights Act 1996 and s.123 Employment Rights Act respectively. The difference being that in the basic award any action prior to the dismissal can be viewed with regard to reducing the award whilst with the compensatory award the conduct has to be connected with the dismissal. The reductions to the awards must therefore be considered separately from each other and it may sound strange but just because there is a reduction from the compensatory award it does not mean that there will be an automatic reduction in the basic award.[1]

Turning to the compensatory award there are a few relevant points which will be considered by the tribunal if they are going to reduce it. It is important to remember that the tribunal should not look any further than the Claimant’s conduct. Even if the employer is at fault for something it should not detract from the contribution that the employee made to their dismissal.[2]

On the flip side to this tribunals and employers must not view any conduct aPer the dismissal itself in it’s consideration towards contributory fault by the employee. This may sound obvious as once you have been dismissed any action taken aPerwards couldn’t really contribute to your dismissal but it was only confirmed in case law fairly recently. The tribunal had initially given a reduction of 75% to the compensatory award due to events occurring both before and after the dismissal. At appeal however it was judged that they had been incorrect and that they should only have considered the prior events with regard to the adjustment and ordered another tribunal.[3]

Another point to remember which differs from the basic award adjustment is that the conduct has to actually have contributed to the dismissal itself (although it does not have to be the principal reason it does actually have to have been one of the reasons [4]. If the conduct itself did not contribute to the dismissal then it should not be considered by the tribunal when making a decision on adjustments. A prime example of this is a case in which an employee was found to have been constructively unfairly dismissed. However the tribunal adjusted, erroneously in this instance, quite significantly giving her a 90% reduction due to events happening at a Christmas party which had no casual link what so ever with her dismissal and quite rightly the EAT remitted the case for reconsideration with regard to remedy.[5]

Finally it should be noted that in dismissals case which are not for misconduct it is highly unlikely that there will be an adjustment in the award for contributory fault as the conduct needs to be viewed as blameworthy which won’t really be appropriate with regard to poor performance, incompetence or ill health.

So if you’re an employee who has been dismissed for misconduct reasons bear in mind that although you might be found to have been unfairly dismissed your actions may come back to haunt you when the question of how much you’re owed is finalised.