Unfair dismissal: contributory conduct and the reduction to compensation

In a successful unfair dismissal claim, both the basic and compensatory awards may be reduced by an Employment Tribunal (ET), to account for any contributory conduct on the part of a claimant. If an ET finds that a dismissal was, to any extent, caused or contributed to by any action of a claimant, it can exercise its discretion to reduce the amount of basic award and the compensatory award by such proportion as it considers ‘just and equitable’. In some cases, this can be a reduction down to nil.

The recent decision in Keirle and others v Notaro Homes confirmed that even where there has been a finding of contributory conduct – the law does not impose an obligation on a Tribunal to make some reduction to a compensatory award, however small.

The case

Five employees were dismissed for alleged breaches of their employer’s social media policy due to social media posts made online. The Claimants believed that the real reason for their dismissals was because they had made protected (whistleblowing) disclosures via the social media posts and accordingly, claimed for automatic unfair dismissal.

The ET decided that the purported breach of the social media policy was not the true reason for their respective dismissals but the protected disclosures were. The ET noted that although the social media posts amounted to contributory conduct, the dismissals were made behind the ‘cloak’ of their social media posts.

Despite the finding of contributory conduct and in deciding the appropriate remedy, the ET did not consider it just and equitable to make any reduction to the compensatory award.

The Respondent employer appealed the decision by arguing that because of the Claimants’ contributory conduct, the ET was, to some extent, entitled and obligated to reduce the Claimants’ basic and compensatory awards.

The Employment Appeal Tribunal (EAT) dismissed the Respondent’s appeal. The EAT did not consider itself to be bound by the precise wording of the relevant statutes which suggested that an ET ‘shall’ make a reduction whenever there is contributory conduct related to a dismissal. The EAT Judge clarified that, once there is a finding of culpable or blameworthy conduct, which caused or contributed to a dismissal, the Tribunal is obliged to consider the question of reduction. The statutory wording in itself did not preclude the possibility that the Tribunal might decide that no reduction at all was just and equitable in any case.

Key considerations for employers

This decision confirms that the longstanding presumption that a finding of contributory negligence will usually necessitate some reduction to the compensatory award – is not a legal requirement. If presented with an ET claim for unfair dismissal, employers should not assume that any award will automatically be reduced where there is also a finding of contributory conduct.

Employers should note that an ET Judge has the ultimate discretion to reduce compensation by ‘such proportion as is just and equitable’ and it can, as it did in this case, decide to make no reduction. A decision to make no reduction for contributory fault is likely to be limited to circumstances where the ET finds that an employee’s conduct, although a contributing factor, has not in fact caused the dismissal, such as in this case where the claimants’ conduct contributed to the dismissal – but only to the extent as a pretext for the employer.

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