EAT Unfair Dismissal: Contributory Fault – Having found that the Claimant was guilty of conduct that was ‘plainly culpable’ and amounted to misconduct, which was the reason for her dismissal, the Employment Tribunal erred in holding that her actions did not to any extent cause or contribute to her dismissal. Its conclusion that what led to her dismissal were the unfair and unreasonable failings by the Respondent to consider and take account of the mitigating circumstances in her case (when it unfairly dismissed her) wrongly focussed on the Respondent’s conduct rather than hers and confused causation of the dismissal with causation of the unfairness.
That conclusion infected the Employment Tribunal’s approach to reduction of the basic award too. The Employment Appeal Tribunal did not have confidence that the Employment Tribunal applied its mind properly to the statutory question whether the Claimant’s culpable misconduct before the dismissal was such that it would be just and equitable to reduce the basic award. Although no causation test applies, this discretion is focused on the conduct of the employee before the dismissal.
Simler DBE P J
[2016] UKEAT 0326 – 15 – 2203
Bailii
England and Wales
Employment
Updated: 14 January 2022; Ref: scu.563299