If a Claimant is successful in claiming unfair dismissal in the Employment Tribunal then they are generally entitled to be compensated for any contractual (or other) losses that they have suffered between the date of their dismissal and the date of the Employment Tribunal. Losses may even be deemed to carry on into the future. However, the Claimant can have their compensation reduced for a number of reasons (among others):
- Failure to mitigate their losses; and/or
- A Polkey reduction applies; and/or
- The Claimant is deemed by the Employment Tribunal to be in some part at fault for the dismissal (“contributory fault”)
The Employment Tribunal has the power to reduce both the Basic Award and the Compensatory Award in unfair dismissal cases (under, respectively, sections 122(2) and 123(6) of the Employment Rights Act 1996). In the former case, the Employment Tribunal can reduce the award for unfair dismissal if it would be just and equitable to do so in the circumstances and in the latter, the award may be reduced if the dismissal was caused or contributed to by the conduct of the Claimant. Such reductions are almost always in unfair dismissal cases which involve misconduct. Capability cases are not normally subject to contributory fault reductions.
This case deals with the issue of contributory fault. The Claimant, who commenced work as a legal secretary for the Respondents in June 2009, was dismissed in October 2010. The Respondents were, and are, a firm of solicitors. The Claimant had fallen out with a number of the employees of the Respondent in August 2010. She tendered her resignation on 24 August 2010day and wrote a strongly worded email to her sister the next day complaining of their conduct. This email also denigrated the characters of the employees of the Respondent involved. However, the Respondent allowed the Claimant to withdraw her resignation on the 30 August and the Claimant went back to work.
However, for some reason the Claimant printed out the email to her sister on the 23 September 2010 (presumably at work). This email was found next to the printer on the next day by one of the employees involved in the original incident and the Claimant was subsequently asked to attend an investigation to explain her conduct. At the meeting the Claimant suggested that the email had been dishonestly removed from her handbag. This, the Employment Tribunal found, was not and could not have been the case. Further, the Employment Tribunal strongly suspected that the Claimant was lying to cover the fact that she had left the offending email by the printer. The Claimant exhibited no remorse regarding the email and did not apologise, only going so far as to state that she had written the email in a fit of rage. On this basis the Respondent deemed that the Claimant had breached their trust and confidence and dismissed her.
The Employment Tribunal found that the initial disciplinary hearing was not conducted in a manner that was fair. The Claimant had not been given advance notice of the allegations and was not informed of the possible outcome of the meeting. Further, the appeal hearing that was held was not sufficiently independent as two of the employees involved had participated in dismissing her. The Employment Tribunal therefore found that her dismissal was unfair. However, the Employment Tribunal reduced the Claimant’s compensation by 80% as a result of her conduct.
The Employment Tribunal indicated that they felt that the test for a reduction of both the Basic Award and the Compensatory Award had been met. The Claimant’s conduct had been culpable throughout the events in September and October 2010 as she had been dishonest and attempted to mislead her employer. Further, it was held that conduct at a disciplinary hearing could bring sections 122(2) and 123(6) Employment Rights Act 1996 into play.
The Employment Appeal Tribunal upheld the original Employment Tribunal’s decision on this basis.
This post was written by Redmans Solicitors, London employment lawyers with employment solicitors in Hammersmith. They are unfair dismissal solicitors and offer employment law advice to employees and employers