Contributory fault

If an ET thinks an employee’s conduct contributed to their dismissal (contributory fault), it can cut the compensatory award to reflect this (section 123(6), ERA 96). To reduce the award, the conduct must be “foolish, perverse or unreasonable” (Nelson v BBC No.2 [1980] ICR 110) but it need not necessarily amount to gross misconduct (Jagex Limited v McCambridge [2019] UKEAT/0041/19/LA).

It is rarely appropriate for an ET to reduce compensation for contributory fault where the employee was dismissed for poor performance (Frith Accountants Limited v Law [2013] UKEAT/0460/13/SM).

Where a dismissal is automatically unfair because it relates to trade union duties or activities, any conduct by the employee that relates to the employer’s demand that they cease to be a member of a union, participate in union activities, or access union services must be disregarded when assessing any contributory fault (section 155, TULRCA 92).

The ET can also cut the basic award because of any conduct of the employee before dismissal (section 22(2), ERA 96). In addition, the ET has a general power to reduce the compensatory award if it thinks this is “just and equitable”, for example, if gross misconduct is only discovered after the dismissal. This can result in a cut to compensation of as much as 100%. (Devis v Atkins [1977] ICR 662). Compensation can also be cut to reflect the ET’s disapproval of the claimant’s conduct, for example covertly recording an internal meeting without good reason.