Contributory fault

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

It is hardly ever appropriate to cut compensation for contributory fault where an employee is dismissed for poor performance (lack of capability) as opposed to misconduct (Frith Accountants Limited v Law [2013] UKEAT/0460/13/SM).

Compensation should hardly ever be cut for contributory fault in a successful claim for constructive unfair dismissal (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 or action by the employee that relates to the employer’s demand that the employee 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 has a discretion to cut the amount of 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 percentage reduction of as much as 100% (Devis v Atkins [1977] ICR 662).

The broad effect of these rules is that where a member is obviously guilty of serious misconduct, it is rarely sensible to bring a tribunal claim for unfair dismissal, even though procedural defects may make the dismissal unfair, because the tribunal is likely to drastically reduce any compensation award, or award no compensation at all.