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).

Where a dismissal is automatically unfair because it relates to trade union duties or activities, section 155 TULRCA 92 requires a tribunal assessing contributory fault to disregard 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.

In addition, the tribunal 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 (so that it cannot be said to have contributed to the dismissal decision). This can result in a percentage reduction of as much as 100% (Devis v Atkins [1977] ICR 662).

The tribunal can also cut the amount of the basic award because of any conduct of the employee before dismissal (section 22(2) ERA 96).

The effect of these rules on contributory fault is that where an employee is guilty of serious misconduct, it is rarely wise to bring a claim for unfair dismissal even though defects in procedure make the dismissal unfair, because of the likelihood of a negligible (or even zero) award. For a good recent example, see the case of City and County of Swansea v Gayle [2013] UKEAT/0501/12/1604, which involved an employee who pretended to be at work when he was really playing squash, discussed on page 281.