An unfair dismissal compensatory award may be reduced for contributory conduct by the employee even if it could be said that, if the employer had acted fairly, a dismissal would not have occurred, according to the Employment Appeal Tribunal (EAT).
Wilkinson v Driver and Vehicle Standards Agency
What are the practical implications of this judgment?
Parties should note this judgment for its insight into the way that the conduct of employees and employers may affect an award of compensation for unfair dismissal. In particular it confirms that:
What is the relevant background?
Following Polkey, it has long been established that, even where an employer can establish that the reason for dismissal is potentially fair, the procedure followed by the employer prior to dismissal may be found to have been unfair. Where the tribunal finds that a dismissal was unfair, it may find that the employee would have been dismissed fairly in any event, either for the reason put forward by the employer or for some other reason, e.g., a redundancy situation which arose shortly after a misconduct dismissal.
Where the tribunal concludes that it is reasonably clear that the unfairness made no difference to the outcome, it may make no compensatory award (i.e., a 100% reduction). Where it concludes that it is reasonably clear that the unfairness was central to the decision to dismiss, it may make no reduction. In other cases, the tribunal should assess the chance that the employee would have been dismissed fairly in any event, and then reduce the losses accordingly. The percentage reduction in such circumstances may be anything between 0% and 100%. For example, where there is a 75% chance that a fair dismissal would have happened, the tribunal would usually reduce the losses by 75%.
It is open to the tribunal to say that a fair dismissal would have occurred but not at the same time as the actual dismissal. For example, if the tribunal concluded that a fair dismissal would have occurred but not until a proper procedure had been completed which would have taken an extra two weeks, it may award only two weeks’ losses.
Where the tribunal concludes that the dismissal was caused or contributed to by any action by the employee, the compensatory award will be reduced by such proportion as is just and equitable. This is usually assessed as a percentage reduction. Therefore, if the tribunal concludes that the employee was to some extent the author of their own misfortune, even if not sufficiently to have warranted dismissal, it may reduce their compensatory award under this provision. This may be the case, for example, where an employee had committed an isolated act of misconduct but not one that was sufficiently serious to justify dismissal for a first offence. The reduction may be as high as 100%, but such a reduction will rarely be appropriate.
Reductions may only be made in respect of actions by the employee which:
Case details
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