This blog explores how a finding of “Contributory Fault” can reduce a Claimant’s Compensation for Unfair Dismissal. Please read on for more…
What Compensation is Awarded in Successful Cases of Unfair Dismissal?
An Employment Tribunal can award two main categories of compensation for Unfair Dismissal, and these are a) the basic award and b) the compensatory award. Please see my earlier blog for full details of how these awards are calculated, including a summary of the increases and reductions that can be made to such awards – https://lincslaw.co.uk/blog/what-is-your-claim-really-worth/.
What is Contributory Fault?
This blog only considers the possible reduction to unfair dismissal compensation termed “Contributory Fault”. Put very simply, this is where a Claimant’s compensation (either the basic award or the compensatory award – or both) are reduced because a finding is made that the Claimant has, in some way, caused or contributed to their own dismissal. The relevant statutory provisions are set out below.
The Legal Framework
- Basic Award Reduction, Section 122 (2) of the Employment Rights Act 1996, “where the Tribunal considers that any conduct of the Complainant before the dismissal (or where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the Tribunal shall reduce or further reduce that amount accordingly”.
- Compensatory Award Reduction, Section 123 (6) of the Employment Rights Act 1996, “where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the Complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding”.
When Is a Reduction Likely?
As can be seen above, reductions to both the basic award and the compensatory award can be made on account of contributory fault. In looking at a potential reduction of the basic award, there is no need for the conduct of the Claimant to have caused or contributed to the dismissal – it might otherwise be considered just and equitable for the reduction to be made. However, in relation to the compensatory award, it is necessary that the Employment Tribunal are satisfied that the dismissal was caused or contributed to by the Claimant. This requires the Employment Tribunal to carefully assess the situation – see below.
In the case of Nelson -v- BBC (No.2) [1979] IRLR 346 (CA) the Court of Appeal listed the factors that must be present for the compensatory award to be reduced on the grounds of contributory fault. The three factors are: –
- The Claimant’s conduct must be culpable or blameworthy in some way.
- The conduct must have actually caused or contributed to the dismissal.
- The reduction must be just and equitable.
In practice, common examples of contributory fault reductions tend to arise in cases where the Employment Tribunal believes the dismissal was unfair only because of the employer’s level of investigation or faults in their dismissal procedure, but that aside from those more procedural concerns, still felt the Claimant’s conduct was blameworthy. For example, the Claimant had nonetheless committed an act of either very serious or Gross Misconduct such as fraud or harassment, or had behaved otherwise very badly in the lead up to their dismissal by being dishonest or aggressive.
The impact of a finding of contributory fault can be huge with an award being capable of reduction to zero. For this reason, it is critical to have your case reviewed prior to spending time and potentially fees on progressing to an Employment Tribunal Final Hearing.
Lincs Law Employment Solicitors Can Help You
If you have (or if you are considering) a claim for Unfair Dismissal in the Employment Tribunal, we always advise you to seek a thorough assessment of your claims and their value as early as possible. Please contact us for a free, no obligation consultation with one of our fully qualified employment solicitors. Simply use the contact form, engage in a webchat, email contactus@lincslaw.com or call us on 01522 440512 and we will be happy to help. Alternatively, for more information about the services we provide, visit www.lincslaw.co.uk.
Sophie Goodwill
Specialist Employment Solicitor, Lincs Law Employment Solicitors
Tags: Claimant Conduct Contributory Fault Employee Conduct Reduction of Compensation Unfair Dismissal Compensation