If an employee’s behaviour is such that the ordinary man in the street would say that they deserved to lose their job, would their dismissal be fair in law? Not necessarily. Employment law has developed a vast array of legislation and case law by which the question of whether a person was unfairly dismissed is decided, and the fact that the dismissed employee was largely, or even completely, to blame for their downfall may not be the determining factor.
This was illustrated in the recent Employment Tribunal decision of Onyike v Sainsbury’s (2017). Mr Onyike worked as an assistant in the delivery yard of the Wandsworth store. This area was frequented by articulated lorries and other goods vehicles delivering produce to the store and was an acknowledged high risk area. Everyone entering the area was required to wear high-vis jackets, and there were prominent safety notices warning employees of the need for them to be aware of vehicles entering and manoeuvring in the yard. Sainsbury’s Health and Safety procedures were also set out in the company handbook and made it clear that a failure to follow the procedures was likely to be treated as gross misconduct.
Mr Onyike was seen by the store manager wearing headphones whilst working in the yard. The manager said that he told Mr Onyike to remove them; Mr Onyike said that he simply signalled for him to take them off. A few days later a deputy manager saw Mr Onyike again wearing headphones and confronted him. Mr Onyike said that the headphones were turned off. The next day My Onyike was summoned to a meeting to investigate the allegation that he had failed to follow the company’s Health and Safety procedures. He admitted that he had been wearing the headphones, but again said that they were not playing any music.
The matter proceeded to a disciplinary hearing. Mr Onyike said that wearing headphones was not a breach, and that he was wearing a high-vis jacket, so drivers would be able to see him. He maintained that he could hear, even when wearing headphones, and also acknowledged that he had been told by the manager and the deputy manager not to wear them. Sainsbury’s took the view that this was a serious breach of health and safety and ultimately dismissed him for gross misconduct. Mr Onyike appealed, and his appeal was unsuccessful.
He then brought claims for unfair dismissal and wrongful dismissal in the Employment Tribunal. The Tribunal found that it was reasonable for Sainsbury’s to take the view that Mr Onyike’s hearing would be impaired by him wearing headphones, whether or not they were on, and that it was perfectly justified in treating the matter as being very serious. However, it also found that Sainsbury’s had not expressly stated that wearing headphones was a breach of their Health and Safety procedure, and therefore the dismissal was unfair. However, the Tribunal also found that Mr Onyike was 80% to blame for his dismissal, and reduced his compensation by 80% due to his contributory fault.
Tribunals do have the power to reduce compensation because of the employee’s contributory fault. In my experience an 80% reduction is relatively uncommon, but it certainly something which employers should argue in appropriate circumstances. In one case, I have managed to get compensation reduced by 100% because of the contributory fault of the employee – but I have argued for that on several other occasions and only achieved a lesser reduction.
This case is Employment Tribunal level only, and therefore not binding on other Tribunals, and in any event contributory fault is inevitably something that has to be considered on its own facts. Nevertheless, this case is a useful example of how contribution can still be a highly relevant factor.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).