An employer facing an unfair dismissal claim will usually argue that the dismissal was for a fair reason and that they followed a fair procedure when dismissing the employee. A flaw in procedure, even one which is relatively minor, can unfortunately lead to a Tribunal making a finding of unfair dismissal – but if that happens, all is not lost – there are still some key arguments that an employer can make at that stage, and one of the most important is contributory fault.
Contributory fault (otherwise known as contributory conduct) is the argument that even if the dismissal is unfair, the Tribunal should take account of the Claimant’s own actions when deciding how much compensation to award. Basically it is saying that the employee brought things on him or herself – the extent of which is for the Tribunal to decide. Usually the Tribunal will apply a percentage deduction.
In the recent case of Ladrick Lemonious v Church Commissioners (2013) the issue of contributory fault was dealt with by the Employment Appeal Tribunal (EAT). Mr Lemonious had been dismissed by his employer for gross misconduct. The alleged gross misconduct was that he had sent emails in the names of some of his colleagues, two of which appeared to suggest that a colleague may have committed a crime. Mr Lemonious denied all involvement.
Mr Lemonious had 37 years’ service at the time of his dismissal and the Tribunal found that the employer’s investigation and disciplinary process had not been sufficiently robust – in particular there had been too much focus on the technical side of the investigation, with insufficient consideration of who had been operating the relevant computers at the time. Mr Lemonious had not been given adequate information about the evidence against him and the disciplinary process had therefore been unfair. However, the Tribunal found that in its view, Mr Lemonious had in fact sent the offending emails. Mr Lemonious’s compensation was reduced by 100% both in terms of his basic award and his compensatory award, and he appealed to the EAT against this decision.
The EAT confirmed that the Tribunal was within its rights to reduce both the basic award and the compensatory award by 100% where an employee’s conduct has contributed to his dismissal. However, in this particular case the Tribunal had not given sufficient reasoning to explain its decision. The EAT therefore sent the case back to the Tribunal so that an explanation could be given.
In our experience contributory fault is a very useful tool for employers not only in Tribunal itself but also in settlement negotiations. While this case didn’t establish a new point of law, and 100% reductions are still relatively unusual, it is a useful reminder that although dismissals can be found unfair on a technicality, it doesn’t necessarily mean a big payout for the employee.
If you would like advice on contributory fault or any other aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.