Contributory fault 





If a tribunal thinks an employee’s conduct contributed to their dismissal, it can cut the compensatory award to reflect this (section 123(6), ERA 96). The conduct must be “foolish, perverse or unreasonable” (Nelson v BBC No.2 [1980] ICR 110). 





It is rarely appropriate to cut compensation for contributory fault where the reason for dismissal was capability, that is, unsatisfactory performance (Frith Accountants Limited v Law [2013] UKEAT/0460/13/SM).





In addition, an award for contributory fault would be rare in a successful claim for constructive dismissal. This is because the basis of this kind of claim is that the employer fundamentally breached the employment contract (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 contributory fault (section 155, TULRCA 92). 





The tribunal also has a discretion to cut the basic award because of any conduct of the employee before dismissal (section 22(2), ERA 96). In addition, the tribunal can 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).